As filed with the Securities and Exchange Commission on August 2, 2023.
Registration Statement No. 333-273240
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
Pre-effective Amendment No. 1 to
FORM S-1
REGISTRATION STATEMENT
under the
SECURITIES ACT OF 1933
YIELD10 BIOSCIENCE, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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2870
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04-3158289
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(IRS Employer
Identification No.)
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19 Presidential Way
Woburn, Massachusetts 01801
(617) 583-1700
(Address, including zip code, and telephone number, including area
code, of registrant’s principal executive offices)
Dr. Oliver P. Peoples
President & Chief Executive Officer
Yield10 Bioscience, Inc.
19 Presidential Way
Woburn, Massachusetts 01801
(617) 583-1700
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
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Megan N. Gates, Esq.
Covington & Burling LLP
One International Place, Suite 1020
Boston, Massachusetts 02110
(617) 603-8805
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M. Ali Panjwani, Esq.
Pryor Cashman LLP
7 Times Square
New York, New York 10036
(212) 421-4100
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this registration statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box. ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer ☐
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Accelerated filer ☐
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Non-accelerated filer ☒
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Smaller reporting company ☒
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Emerging growth company ☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant files a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED AUGUST 2, 2023
PRELIMINARY PROSPECTUS
YIELD10 BIOSCIENCE, INC.
Up to 4,901,960 Units consisting of
4,901,960 Shares of Common Stock
or 4,901,960 Pre-Funded Warrants to Purchase up to 4,901,960 Shares of Common Stock and Common Warrants to Purchase up to 4,901,960 Shares of Common Stock
Up to 4,901,960 Shares of Common Stock Underlying Pre-Funded Warrants
Up to 4,901,960 Shares of Common Stock Underlying Common Warrants
We are offering on a reasonable best efforts basis up to 4,901,960 units (the “units”), each unit consisting of one share of our common stock, par value $0.01 per share (the “common stock”), and one common warrant (each, a “common warrant”) to purchase one share of our common stock.
We are also offering to each purchaser whose purchase of shares of common stock in this offering would otherwise result in the purchaser, together with its affiliates and certain related parties, beneficially owning more than 4.99% of our outstanding common stock immediately following the consummation of this offering, the opportunity to purchase, if the purchaser so chooses, pre-funded units, each pre-funded unit consisting of one pre-funded warrant to purchase one share of common stock (each, a “pre-funded warrant,” and together with the common warrants, the “warrants”), in lieu of shares of common stock, and one common warrant. Each pre-funded warrant will be exercisable for one share of our common stock. The purchase price of each pre-funded unit will equal the price per unit at which the units are being sold to the public in this offering, minus $0.001, and the exercise price of each pre-funded warrant will be $0.001 per share.
This prospectus also relates to the shares of common stock issuable upon exercise of any pre-funded warrants and common warrants sold in this offering. For each pre-funded unit we sell, the number of units (and shares of common stock) we are offering will be decreased on a one-for-one basis. Each common warrant will be exercisable for one share of our common stock and have an exercise price of $ per share. Because we will issue a common warrant to purchase one share of our common stock for each share of our common stock and for each pre-funded warrant sold in this offering, the number of common warrants sold in this offering will not change as a result of a change in the mix of the shares of our common stock and pre-funded warrants sold. The common warrants will be exercisable immediately and will expire five years from the date of issuance. The shares of common stock or pre-funded warrants, and the accompanying common warrants, can only be purchased together in this offering but will be issued separately and will be immediately separable upon issuance. We refer to the units, common stock, pre-funded warrants, and common warrants to be sold in this offering collectively as the “securities.”
The securities will be offered at a fixed price and are expected to be issued in a single closing. The offering will terminate on August 14, 2023, unless completed sooner or unless we decide to terminate the offering (which we may do at any time in our discretion) prior to that date; however, notwithstanding the foregoing, the shares of our common stock underlying each of the pre-funded warrants and the common warrants will be offered on a continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”). We expect this offering to be completed not later than three business days following the commencement of sales in this offering (after the effective date of the registration statement of which this prospectus forms a part) and we will deliver all securities to be issued in connection with this offering delivery versus payment or receipt versus payment, as the case may be, upon receipt of investor funds received by us. Accordingly, neither we nor the placement agents (as defined below) have made any arrangements to place investor funds in an escrow account or trust account since the placement agents will not receive investor funds in connection with the sale of the securities offered hereunder.
We have engaged Maxim Group LLC and Lake Street Capital Markets, LLC (each, a “placement agent” and together, the “placement agents”), to act as placement agents in connection with this offering. The placement agents have agreed to use their reasonable best efforts to arrange for the sale of the securities offered by this prospectus. The placement agents are not purchasing or selling any of the securities we are offering and the placement agents are not required to arrange the purchase or sale of any specific number of securities or dollar amount. We have agreed to compensate the placement agents as set forth in the table below, which assumes that we sell all of the securities offered by this prospectus. There is no arrangement for funds to be received in escrow, trust or similar arrangement. There is no minimum offering requirement as a condition of closing of this offering. We may sell fewer than all of the shares of common stock and/or pre-funded warrants and accompanying common warrants offered hereby, which may significantly reduce the amount of proceeds received by us. Because there is no escrow account and no minimum number of securities or amount of proceeds, investors could be in a position where they have invested in us, but we have not raised sufficient proceeds in this offering to adequately fund the intended uses of the proceeds as described in this prospectus. See “Risk Factors” on page 7 of this prospectus.
Our common stock is listed on The Nasdaq Capital Market under the symbol “YTEN.” The last reported sale price for our common stock on The Nasdaq Capital Market on July 28, 2023 was $2.04 per share. The actual number of securities, the offering price per unit and the exercise price for the accompanying common warrant, will be as determined between us, the placement agents and the investors in this offering based on market conditions at the time of pricing, and may be at a discount to the current market price. Therefore, the recent market price used throughout this prospectus may not be indicative of the actual public offering price for our units. There is no established public trading market for the pre-funded warrants or the common warrants and we do not expect a market to develop. In addition, we do not intend to apply for a listing of the pre-funded warrants or the common warrants on any national securities exchange.
Investing in our securities involves a high degree of risk. See “Risk Factors” beginning on page 7 of this prospectus.
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Per Share and
Accompanying
Common Warrant
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Per Pre-Funded
Warrant and
Accompanying
Common Warrant
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Total(1)
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Public offering price
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$ |
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$ |
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$ |
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Placement agent fees(2)
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$ |
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$ |
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$ |
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Proceeds, before expenses, to us
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$ |
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$ |
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$ |
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(1)
Assumes no sale of pre-funded warrants.
(2)
We have agreed to pay the placement agents an aggregate cash fee equal to 7% of the aggregate gross proceeds raised in this offering, and to reimburse the placement agents for certain of their offering-related expenses. See “Plan of Distribution” on page 27 of this prospectus for a description of the compensation to be received by the placement agents.
Neither the Securities and Exchange Commission (the “SEC”) nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Delivery of the units is expected to be made on or about , 2023, subject to satisfaction of customary closing conditions.
The date of this prospectus is , 2023
Placement Agents
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Maxim Group LLC
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Lake Street
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TABLE OF CONTENTS
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31
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27
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35
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You should read this prospectus, any applicable prospectus supplement and any documents incorporated by reference into this prospectus before making an investment in the securities of Yield10 Bioscience, Inc. See “Where You Can Find More Information” for more information. We and the placement agents take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. Neither we nor any of the placement agents have authorized anyone to provide you with different information. This document may be used only in jurisdictions where offers and sales of these securities are permitted. The information contained in this prospectus, or in any prospectus supplement, is accurate only as of its date. Our business, financial condition, results of operations and prospects may have changed since such date. Unless otherwise noted in this prospectus, “Yield10 Bioscience,” “Yield10,” “the Company,” “we,” “us,” “our” and similar terms refer to Yield10 Bioscience, Inc.
Smaller Reporting Company — Scaled Disclosure
Pursuant to Item 10(f) of Regulation S-K promulgated under the Securities Act, as indicated herein, we have elected to comply with the scaled disclosure requirements applicable to “smaller reporting companies,” including providing two years of audited financial statements.
PROSPECTUS SUMMARY
This summary highlights some information from this prospectus. It may not contain all the information important to making an investment decision. You should read the following summary together with the more detailed information regarding our Company and the securities being sold in this offering, including “Risk Factors” and other information incorporated by reference herein.
Business Overview
Yield10 Bioscience, Inc. (“Yield10” or the “Company”) is an agricultural bioscience company focused on the large-scale production of low carbon sustainable products from processing Camelina seed using the oilseed Camelina sativa (“Camelina”) as a platform crop. These seed products include:
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Camelina oil for use as a low carbon biofuel feedstock
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Omega-3 oils for nutrition
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PHA Bioplastics for biodegradable zero waste packaging solutions
The co-product from producing these seed products is Camelina meal which has a protein content of over 40% and is currently approved for use in a range of animal feed rations.
Our commercial plan is based on developing and releasing a series of proprietary elite Camelina seed varieties incorporating genetic traits from our development pipeline which are being designed to offer improved on-farm performance that we anticipate will lead to increased acreage adoption and seed product revenue. Yield10 is headquartered in Woburn, Massachusetts and has a Canadian subsidiary, Yield10 Oilseeds Inc., located in Saskatoon, Saskatchewan, Canada.
Camelina, an annual oilseed plant in the mustard family, was selected as our platform crop based on its unique attributes, including its excellent agronomic traits such as low water and fertilizer input, drought resistance and short life cycle, making it suitable as a rotation crop within the U.S. Northwest and regions of Canada, as well as a relay or cover crop with corn and soybean in the U.S. Midwest. We estimate there is the potential for over 30 million acres of Camelina production in North America. Camelina is in the same plant family as canola and naturally produces a relatively abundant harvest of oil-containing protein-rich seeds. Camelina is highly amenable to advanced genetic engineering and genome-editing technologies. Over the last twelve years, we have been developing improved Camelina seed varieties through identification and deployment of our gene trait discoveries followed by performance evaluation in field tests. Our new seed product traits include the PHA bioplastic trait developed by us and the omega-3 (EPA, DHA+EPA) oil traits on which we secured exclusive rights to a commercial license option in 2020.
Our capital light business model is based on contracting with growers to produce Camelina grain using our proprietary Camelina seed. Yield10 will have the exclusive right to purchase the harvested grain from these growers for downstream processing to separate and sell the seed products into the different markets. Our commercial launch plan is to leverage the growing global demand for biofuels to decarbonize the transportation sector, and in particular, the renewable diesel and sustainable aviation fuel markets. We recognized early on that we could play an important role in the biofuel value chain through the use of our advanced Camelina platform to address a key industry bottleneck; the significant shortfall in the supply of low carbon intensity feedstock oil. The establishment of downstream value chain partnerships represents a critical step towards enabling Yield10 to scale this business. We expect to build the operating foundation of our products business by securing offtake agreements with downstream oilseed processing/ biofuel partners. Sources of revenue from our first Camelina seed product will be based on the financial terms negotiated with these biofuel offtake partners.
Our goal is to link the base oil price for other commodity seed oils, such as soybean, and share in the economic value of the lower carbon intensity score of the Camelina oil. We expect that initial revenue growth from this business will scale up based on increasing the number of acres of our Camelina planted during each growing season. Feedback from our grower outreach has identified weed control and soil residues from the herbicides used on prior crop as key limitations to the adoption of existing Camelina varieties. To achieve our revenue targets, improved Camelina varieties with new genetic traits are being accelerated through our development pipeline in order to offer farmers weed control and a seamless integration into their
current crop rotations. We expect to be able to substantially increase revenue for our growers by introducing proprietary performance traits from the Yield10 pipeline, including higher seed oil content and seed yield traits that can increase the per acre harvest value of the Camelina grain. Improved grower income is expected to lead to increasing numbers of growers under contract, increased acres planted and higher product revenue and income for the Company.
Advancements in Camelina varieties, seed operations capabilities, grower network and supply chain developed for biofuels and underwritten by biofuel partnerships will position Yield10 for the subsequent launch of its second Camelina seed product omega-3 oils and in the future, PHA bioplastics.
As a first stage in our initial Camelina commercialization, during the third quarter of 2022, we engaged growers in contracts for the production of Camelina grain and Camelina seed having a total acreage of approximately 1,000 acres. These growers are located in the U.S. and Canada with each grower planting between 30 and 160 acres of our WDH2 (winter, cold tolerant) and WDH3 (winter, early maturing) seed varieties, with harvest having begun in the summer of 2023. We intend to use the seed harvest for toll crushing and further seed production that will provide us with seed inventory for future grower contracts during 2023 and beyond. Also, during 2022, we contracted with other growers to plant our E3902 (spring, high oil yield), WDH2 (winter, increased cold tolerance) and WDH3 (winter, early flowering) Camelina plant varieties to produce commercial planting seed. This activity is an essential part of our business model to produce commercial seed inventory for future grower contracts. We expect future grower contracts to cover Camelina grain production for large-scale grain processing to supply low-carbon intensity feedstock oil for the biofuel market and high-protein meal for the animal feed market.
We have also announced positive results in the first field test of stacked herbicide tolerance (“HT”) traits in Camelina. These proprietary stacked HT Camelina varieties developed by us demonstrate tolerance to the application of an over-the-top herbicide for weed control as well as tolerance to Group 2 herbicide soil residues. These results represent a key advancement for supporting grower adoption of stacked HT Camelina for the biofuel feedstock market by enabling weed control and increased access to acreage previously treated with Group 2 herbicides. We are executing a program to develop and commercialize spring and winter Camelina varieties with stacked herbicide traits to achieve large acreage adoption of the crop in North America.
We are currently pursuing the development of elite Camelina germplasm exhibiting herbicide tolerance, disease resistance and other traits that we believe in the near future, will form improved elite Camelina varieties for the biofuel market and will later be combined with the new seed product traits in development to expand our markets. We ultimately expect to have three types of elite Camelina seed varieties in contracted production to address our product markets.
We believe the market opportunity for biofuel feedstocks from our elite Camelina varieties, as well as our other proprietary seed products in development, including performance traits for use in other crops, is significant. We are targeting uses for our Camelina seed products in commercial applications such as: low- carbon feedstock oils for renewable diesel and sustainable aviation fuel, omega-3 oils for aquaculture and nutrition, and PHA bioplastics. In July 2022, we signed a nonbinding memorandum of understanding (“MOU”) with Mitsubishi Corporation to evaluate the establishment of a partnership to supply, offtake and market Camelina as a low-carbon feedstock oil for biofuel, and in February 2023, we signed another nonbinding MOU with American Airlines to collaborate in the development of the value chain for Camelina as a low-carbon feedstock oil for sustainable aviation fuel.
On April 27, 2023, the Company signed a non-binding letter of intent (“LOI”) with Marathon Petroleum Corporation (“Marathon”) for a potential investment in Yield10 by Marathon and an offtake agreement for low-carbon intensity Camelina feedstock oil for use in renewable fuels (the “Offtake Agreement”). In connection with signing the LOI, Yield10 sold and issued to MPC Investment LLC, an affiliate of Marathon (the “Purchaser”), a senior unsecured convertible note in the original principal amount of $1.0 million which is convertible into shares of the Company’s common stock at a conversion price equal to $3.07 per share. Since the execution of the LOI, we and Marathon have made continued progress toward the execution of the Offtake Agreement, on terms consistent with the LOI. There can be no assurance that we will be able to enter into the definitive Offtake Agreement, and there can be no assurance that, if
the Offtake Agreement is finalized, it will be successful or provide benefits to us as we expect. In accordance with our strategy, we continue to explore additional financing and collaboration opportunities with potential strategic partners.
We believe performance traits from our gene discovery and development platform (the “Trait Factory”) and value-added product strategy will provide strong differentiation for Yield10’s elite Camelina seed varieties, making them preferred by growers to address large product market opportunities as illustrated below. These traits will also be made available to leading seed companies for use in other crops to create licensing revenue.
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Platform
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Product
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Main Markets
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Revenue Potential
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Status
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Elite Camelina
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Feedstock oil
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Renewable diesel
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Aviation biofuel
$27 billion
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$180 million - $1 billion
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Early Commercial
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Accelerating elite variety development
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Focus: US, Canada
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Biofuel partner outreach
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Elite PHA Camelina
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PHA Bioplastics Feedstock oil
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Single use plastic
$200 billion
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$3.6 billion
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Trait optimization
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Pilot process development
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Partner outreach
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Elite Omega-3 Camelina
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Omega-3 Oil (DHA+EPA)
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Aquaculture feed
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Nutrition
$4-6 billion
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$0.5 billion
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Pre-commercial development
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Partner outreach
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(1)
Internal Company estimates of 2030 product revenue potential.
Our Camelina platform and each of our seed product targets are well-aligned with global trends in reducing carbon emissions and improving sustainability, including the need for:
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Producing low-carbon intensity biofuel feedstock oil for renewable diesel and aviation biofuel.
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Increasing the production of cover crops to reduce the climate change impact from agriculture.
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Producing PHA bioplastics to enable single use food service items and packaging with zero waste.
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Increasing global food security by:
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producing land-based omega-3 (EPA, DHA+EPA) fatty acid oils for use in aquaculture and nutraceuticals;
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increasing high quality protein production from Camelina seed; and
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developing performance traits to increase yield and/or seed oil per acre for major food crops.
We have a pipeline of more than 10 novel yield and/or seed oil content performance traits currently in research and development. Today, we also have research agreements in place for a number of our yield trait gene candidates, including agreements with GDM Seeds and JR Simplot Company. These companies are currently making progress on the development of our traits in soybean and potato. Our plan is to support these licensees as they work to generate proof points using our traits in their crops of interest.
We also plan to find partners for our traits in canola, corn and other crops as we generate additional data and new trait leads using our Trait Factory.
We are building an intellectual property portfolio around our crop technologies and traits. As of March 31, 2023, we own or hold exclusive rights to 19 patent families, including 15 issued patents and 41 pending patent applications, related to advanced technologies for increasing crop performance and composition traits in oils and PHA bioplastics, in the United States and throughout the world. As part of our agreement with Rothamsted Research Limited (“Rothamsted”), we have an exclusive option to license two patent families, including six issued patents and four pending applications, including both the original patent filing for the production of EPA, DHA+EPA oil in Camelina and for an improvement patent filed after the agreement was signed. In November 2022, Yield10 and Rothamsted agreed to extend the exclusive option and license agreement until December 31, 2023.
Corporate Information
We were incorporated in Massachusetts in 1992 under the name Metabolix, Inc. In September 1998, we reincorporated in Delaware. We changed our name to Yield10 Bioscience, Inc. in January 2017 to reflect our
change in mission around innovations in agricultural biotechnology focused on developing disruptive technologies for step-change improvements in crop yield and niche crop products. Our corporate headquarters are located at 19 Presidential Way, Woburn, MA 01801, and our telephone number is +1 (617) 583-1700. Our website address is www.yield10bio.com. The information contained on our website or that can be accessed through our website is not part of this prospectus and is included as an inactive textual reference only.
THE OFFERING
Units offered by us
Up to 4,901,960 units, each unit consisting of one share of common stock and one common warrant to purchase one share of common stock.
Each common warrant will be exercisable for one share of common stock, will have an exercise price of $ per share, will be exercisable on or after the original issuance date and will expire on the fifth anniversary of the original issuance date. This prospectus also relates to the offering of the shares of common stock issuable upon exercise of the common warrants.
Pre-funded units offered by us
We are also offering to each purchaser whose purchase of shares of common stock in this offering would otherwise result in the purchaser, together with its affiliates and certain related parties, beneficially owning more than 4.99% of our outstanding common stock immediately following the consummation of this offering, the opportunity to purchase, if the purchaser so chooses, pre-funded units, each pre-funded unit consisting of one pre-funded warrant, in lieu of shares of common stock, and one common warrant.
Each pre-funded warrant will be exercisable for one share of our common stock. The purchase price of each pre-funded unit will equal the price per unit at which the units are being sold to the public in this offering, minus $0.001, and the exercise price of each pre-funded warrant will be $0.001 per share. Each pre-funded warrant will be exercisable for one share of common stock, will have an exercise price of $0.001 per share, will be immediately exercisable and may be exercised at any time until the pre-funded warrants are exercised in full. This offering also relates to the shares of common stock issuable upon exercise of any pre-funded warrants sold in this offering. For each pre-funded unit we sell, the number of units (and shares of common stock) we are offering will be decreased on a one-for-one basis.
Common stock to be outstanding after this offering
10,987,227 shares (assuming the sale of 4,901,960 units, no sale of pre-funded warrants, and no exercise of any of the warrants issued in this offering).
Use of proceeds
We estimate the net proceeds to us from this offering, after deducting placement agent fees and estimated offering expenses payable by us, will be approximately $9.0 million, assuming a public offering price of $2.04 per unit, based on the last reported sale price of our common stock on Nasdaq on July 28, 2023 of $2.04 and no sale of pre-funded warrants. However, this is a reasonable best efforts offering with no minimum number of securities or amount of proceeds as a condition to closing, and we may not sell all or any of these securities offered pursuant to this prospectus; as a result, we may receive significantly less in net proceeds. The actual offering price for the offered securities will be as determined between us, the placement agents, and the investors in this offering at the time of pricing, and may be at a discount to the current market price. We intend to use the net proceeds from this offering for general corporate purposes. See the section entitled “Use of Proceeds” beginning on page 11 of this prospectus.
Risk factors
An investment in our securities involves a high degree of risk. See the section entitled “Risk Factors” beginning on page 7 of this prospectus and the similarly entitled sections in the documents incorporated by reference into this prospectus.
Nasdaq Capital Market symbol
Our common stock is listed on the Nasdaq Capital Market under the symbol “YTEN.” We do not intend to list the pre-funded warrants or the common warrants on any securities exchange or nationally recognized trading system.
Reasonable best efforts offering
We have agreed to offer and sell the securities offered hereby to the purchasers through the placement agents. The placement agents are not required to buy or sell any specific number or dollar amount of the securities offered hereby, but they will use their reasonable best efforts to solicit offers to purchase the securities offered by this prospectus. See “Plan of Distribution” on page 27 of this prospectus.
Outstanding shares
The number of shares of common stock that will be outstanding after this offering is based on 5,078,557 shares outstanding as of March 31, 2023, and excludes:
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1,160,114 shares of common stock issuable upon exercise of options to purchase our common stock outstanding as of March 31, 2023 at a weighted average exercise price of $12.29 per share;
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14,270 shares of common stock issuable upon exercise of warrants outstanding as of March 31, 2023 at an exercise price of $201.60 per share;
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1,114,278 shares of common stock issuable upon exercise of Series B Warrants at an exercise price of $8.00 per share; and
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750 shares of common stock issuable upon exercise of immediately vested warrants at an exercise price of $116.00 per share.
Preliminary Results for the Three and Six Months Ended June 30, 2023
As of June 30, 2023, we had cash and cash equivalents of approximately $2.3 million. Cash and cash equivalents as of June 30, 2023 is preliminary, unaudited and subject to completion and may differ from what will be reflected in our unaudited interim financial statements as of and for the three and six months ended June 30, 2023. Our unaudited interim condensed financial statements as of and for the three and six months ended June 30, 2023 will not be available to you prior to investing in the securities offered by this prospectus.
RISK FACTORS
An investment in our securities involves a high degree of risk. Before deciding whether to invest in our securities, you should consider carefully the risks and uncertainties described below and in the section captioned “Risk Factors” contained in our Annual Report on Form 10-K for the fiscal year ended December 31, 2022 filed with the SEC) on March 14, 2023 and other filings we make with the SEC from time to time, which are incorporated by reference herein in their entirety, together with other information in this prospectus and the information incorporated by reference herein. If any of these risks actually occurs, our business, financial condition, results of operations or cash flow could suffer materially. In such event, the trading price of our common stock could decline, and you might lose all or part of your investment.
This is a reasonable best efforts offering, with no minimum amount of securities required to be sold, and we may sell fewer than all of the securities offered hereby.
The placement agents have agreed to use their reasonable best efforts to solicit offers to purchase the units and the pre-funded units in this offering. The placement agents have no obligation to buy any of the securities from us or to arrange for the purchase or sale of any specific number or dollar amount of the securities. There is no required minimum number of securities that must be sold as a condition to completion of this offering. As there is no minimum offering amount required as a condition to the closing of this offering, the actual offering amount, aggregate placement agent fees and proceeds to us are not presently determinable and may be substantially less than the maximum amounts set forth above. We may sell fewer than all of the securities offered hereby, which may significantly reduce the amount of proceeds received by us, and investors in this offering will not receive a refund in the event that we do not sell all of the units or pre-funded units offered by us in this offering. The success of this offering will impact our ability to use the proceeds to execute our business plans. We may have insufficient capital to implement our business plans, potentially resulting in greater operating losses unless we are able to raise the required capital from alternative sources. There is no assurance that alternative capital, if needed, would be available on terms acceptable to us, or at all.
There can be no assurance that we will be able to comply with the continued listing standards of the Nasdaq Capital Market.
We cannot assure you that we will be able to comply with the standards that we are required to meet in order to maintain a listing of our common stock on the Nasdaq Capital Market. Listing rules of the Nasdaq Stock Market LLC (“Nasdaq”) require us to maintain certain closing bid price, stockholders’ equity and other financial metric criteria in order for our common stock to continue trading on the Nasdaq Capital Market. For example, Nasdaq Listing Rule 5550(a)(4) requires companies to maintain a minimum of 500,000 publicly held shares, Nasdaq Listing Rule 5550(a)(2) requires listed securities to maintain a minimum bid price of $1.00 per security, and Listing Rule 5810(c)(3)(A) provides that a failure to meet the minimum bid price requirement exists if the deficiency continues for a period of 30 consecutive business days.
On May 18, 2023, we received a deficiency letter (the “Letter”) from the Listing Qualifications Department (the “Staff”) of Nasdaq notifying the Company that it is not in compliance with the minimum stockholders’ equity requirement for continued listing on Nasdaq. Nasdaq Listing Rule 5550(b)(1) requires companies listed on the Nasdaq Capital Market to maintain stockholders’ equity of at least $2,500,000 (the “Stockholders’ Equity Requirement”). The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2023, filed with the SEC on May 12, 2023, reported stockholders’ equity of $1,143,000, which is below the Stockholders’ Equity Requirement. As of July 18, 2023, the Company does not have a market value of listed securities of $35 million, or net income from continued operations of $500,000 in the most recently completed fiscal year or in two of the last three most recently completed fiscal years, which are the alternative quantitative standards for continued listing on the Nasdaq Capital Market. The Letter has no immediate effect on the Company’s continued listing on Nasdaq, subject to the Company’s compliance with the other continued listing requirements. In accordance with Nasdaq rules, the Company submitted a plan to regain compliance with this listing requirement. On July 13, 2023, the Company received a letter from the Staff granting the Company an extension of time to regain compliance with the Stockholders’ Equity Requirement. If the Company fails to evidence compliance upon filing its periodic report for the period ending September 30, 2023, with the SEC and Nasdaq, the Company may be subject to delisting. In the
event the Company does not satisfy those terms, the Staff will provide written notification that the Company’s securities will be delisted. At that time, the Company may appeal the Staff’s determination. There can be no assurance that the Company will be able to regain compliance with the Stockholders’ Equity Requirement or to evidence compliance with other Nasdaq listing requirements.
Management will have broad discretion as to the use of the proceeds from this offering and we may not use the proceeds effectively.
Our management will have broad discretion with respect to the use of proceeds of this offering, including for any of the purposes described in the section entitled “Use of Proceeds” beginning on page 11 of this prospectus. You will be relying on the judgment of our management regarding the application of the proceeds of this offering. The results and effectiveness of the use of proceeds are uncertain, and we could spend the proceeds in ways that you do not agree with or that do not improve our results of operations or enhance the value of our common stock. Our failure to apply these funds effectively could harm our business and cause the price of our common stock to decline.
We may not receive any additional funds upon the exercise of the common warrants.
Each common warrant has an exercise price of $ per share, and may also be exercised in certain circumstances by way of a cashless exercise, meaning that the holder may not pay a cash purchase price upon exercise, but instead would receive upon such exercise the net number of shares of our common stock determined according to the formula set forth in the common warrant. Accordingly, we may not receive any additional funds, or any significant additional funds, upon the exercise of the common warrants.
You will experience immediate and substantial dilution as a result of this offering and may experience additional dilution in the future.
You will incur immediate and substantial dilution as a result of this offering. After giving effect to the sale by us of securities offered in this offering at an assumed public offering price of $2.04 per share unit, which is the last reported sale price of our common stock on Nasdaq on July 28, 2023, and after deducting placement agent fees and estimated offering expenses payable by us, investors in this offering would experience immediate dilution of approximately $0.87 per share. See the section entitled “Dilution” beginning on page 15 of this prospectus for a more detailed discussion of the dilution you will incur if you purchase securities in this offering. The discussion above assumes (i) no sale of pre-funded warrants, which, if sold, would reduce the number of shares of common stock that we are offering on a one-for-one basis, and (ii) no exercise of the warrants being offered in this offering.
To raise additional capital, we may in the future sell additional shares of our common stock or other securities convertible into or exchangeable for our common stock at prices that are lower than the prices paid by existing stockholders, and investors purchasing shares or other securities in the future could have rights superior to existing stockholders. If we issue shares of common stock or securities convertible or exercisable into shares of common stock, our stockholders would experience additional dilution and, as a result, our share price may decline.
There is no public market for the pre-funded warrants or the common warrants being offered in this offering.
There is no established public trading market for the pre-funded warrants or the common warrants being offered in this offering, and we do not expect a market to develop. In addition, we do not intend to apply to list the pre-funded warrants or the common warrants on any securities exchange or nationally recognized trading system, including The Nasdaq Capital Market. Without an active market, the liquidity of the pre-funded warrants and the common warrants will be limited.
Holders of pre-funded warrants or common warrants purchased in this offering will have no rights as common stockholders until such holders exercise their warrants and acquire our common stock.
Until holders of pre-funded warrants or common warrants acquire shares of our common stock upon exercise thereof, holders of warrants will have no rights with respect to the shares of our common stock underlying such warrants. Upon exercise of the pre-funded warrants or common warrants, the holders will be entitled to exercise the rights of a common stockholder only as to matters for which the record date occurs after the exercise date.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the information incorporated by reference in this prospectus contain forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934 (“Exchange Act”), regarding our strategy, future, operations, future financial position, future revenues, projected costs, and plans and objectives of management. You can identify these forward-looking statements by their use of words such as “anticipate,” “believe,” “estimate,” “expect,” “intend,” “may,” “plan,” “project,” “target,” “potential,” “will,” “would,” “could,” “should,” “continue,” and similar expressions. You also can identify them by the fact that they do not relate strictly to historical or current facts. There are a number of important risks and uncertainties that could cause our actual results to differ materially from those indicated by forward-looking statements. For a description of these risks and uncertainties, please refer to the section entitled “Risk Factors,” any other risk factors set forth in any information incorporated by reference in this prospectus, as well as any other risk factors and cautionary statements we include or incorporate by reference into this prospectus in the future. While we may elect to update forward-looking statements wherever they appear in this prospectus or in the documents incorporated by reference in this prospectus, we do not assume, and specifically disclaim, any obligation to do so, whether as a result of new information, future events or otherwise.
USE OF PROCEEDS
We estimate that the net proceeds from our issuance and sale of the units in this offering will be approximately $9.0 million (assuming the sale of the maximum number of units offered hereby), after deducting the placement agent fees and estimated offering expenses payable by us, and assuming a public offering price of $2.04 per unit, which is the last reported sale price of our common stock on Nasdaq on July 28, 2023, excluding the proceeds, if any, from the exercise of any warrants and no sale of pre-funded warrants. However, because this is a reasonable best efforts offering with no minimum number of securities or amount of proceeds as a condition to closing, the actual offering amount, placement agent fees, and net proceeds to us are not presently determinable and may be substantially less than the maximum amounts set forth on the cover page of this prospectus, and we may not sell all or any of the securities we are offering. As a result, we may receive significantly less in net proceeds. Based on the assumed offering price set forth above, we estimate that our net proceeds from the sale of 75% and 50% of the units offered in this offering would be approximately $6.7 million and $4.3 million, respectively, after deducting placement agent fees and estimated offering expenses payable by us, and assuming no pre-funded warrants are sold and no exercise of any warrants.
As of March 31, 2023, we had cash and cash equivalents of approximately $1.8 million. As of June 30, 2023, we had cash and cash equivalents of approximately $2.3 million. Cash and cash equivalents as of June 30, 2023 is preliminary, unaudited and subject to completion and may differ from what will be reflected in our unaudited interim financial statements as of and for the three and six months ended June 30, 2023. Our unaudited interim condensed financial statements as of and for the three and six months ended June 30, 2023 will not be available to you prior to investing in the securities offered by this prospectus.
We intend to use the net proceeds from this offering for general corporate purposes.
This expected use of net proceeds from this offering and our existing cash and cash equivalents represents our intentions based upon our current plans and business conditions, which could change in the future as our plans and business conditions evolve. The amounts and timing of our actual expenditures may vary significantly depending on numerous factors, including the progress of our development, any collaborations that we may enter with third parties, and any unforeseen cash needs. As a result, our management will retain broad discretion over the allocation of the net proceeds from this offering. We have no current agreements, commitments or understandings for any material acquisitions or licenses of any products, businesses or technologies.
We anticipate existing cash and cash equivalents and the net proceeds from this offering will be sufficient to fund our planned operations into the second quarter of 2024. We plan to raise additional capital in the future to fund our ongoing working capital requirements.
As of the date of this prospectus, we cannot predict with certainty all the uses for the net proceeds to be received upon the completion of this offering or the amounts we will spend on the uses set forth above. Pending our use of the net proceeds from this offering, we intend to invest a portion of the net proceeds in a variety of capital preservation investments, including short-term, interest-bearing instruments and U.S. government securities.
MARKET FOR OUR COMMON STOCK
Market Information
Our common stock is listed under the symbol “YTEN” on the Nasdaq Capital Market.
Stockholders
As of July 12, 2023, there were approximately 28 stockholders of record.
DIVIDEND POLICY
We have never declared or paid any cash dividends on our capital stock and do not expect to pay any cash dividends for the foreseeable future. We intend to use future earnings, if any, in the operation and expansion of our business. Any future determination relating to our dividend policy will be made at the discretion of our board of directors, based on our financial condition, results of operations, contractual restrictions, capital requirements, business properties, restrictions imposed by applicable law and other factors our board of directors may deem relevant.
CAPITALIZATION
The following table sets forth our cash and cash equivalents and capitalization as of March 31, 2023:
•
on an actual basis as of March 31, 2023;
•
on a pro forma basis to give effect to the issuance and sale of 931,600 shares of our common stock, a pre-funded warrant to purchase 75,110 shares of our common stock (and assuming the exercise thereof), and private placement warrants to purchase 1,006,710 shares of our common stock and our receipt of net proceeds of $2.7 million therefrom, in a private placement consummated on May 3, 2023; and
•
on a pro forma as adjusted basis to give further effect to the issuance and sale of the units in this offering at an assumed public offering price of $2.04 per unit, which is the last reported sale price for our common stock on Nasdaq on July 28, 2023, after deducting the placement agent fees and estimated offering expenses payable by us, and assuming no pre-funded warrants are issued and no exercise of any warrants.
|
|
|
Actual
|
|
|
Pro Forma
|
|
|
Pro Forma
As Adjusted(1)
|
|
|
|
|
(in thousands)
|
|
Cash and cash equivalents
|
|
|
|
$ |
1,809 |
|
|
|
|
$ |
4,532 |
|
|
|
|
$ |
13,496 |
|
|
Stockholders’ equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock, $0.01 par value per share: 60,000,000 shares authorized as of March 31, 2023; 5,078,557 shares issued and outstanding as of March 31, 2023; 6,085,267 shares issued and outstanding pro forma 10,987,227 shares issued and outstanding pro forma as adjusted
|
|
|
|
|
51 |
|
|
|
|
|
61 |
|
|
|
|
|
110 |
|
|
Additional paid-in capital
|
|
|
|
|
404,803 |
|
|
|
|
|
407,516 |
|
|
|
|
|
416,431 |
|
|
Accumulated deficit
|
|
|
|
|
(403,479) |
|
|
|
|
|
(403,479) |
|
|
|
|
|
(403,479) |
|
|
Accumulated other comprehensive loss
|
|
|
|
|
(232) |
|
|
|
|
|
(232) |
|
|
|
|
|
(232) |
|
|
Total stockholders’ equity
|
|
|
|
|
1,143 |
|
|
|
|
|
3,866 |
|
|
|
|
|
12,830 |
|
|
Total capitalization
|
|
|
|
$ |
1,143 |
|
|
|
|
$ |
3,866 |
|
|
|
|
$ |
12,830 |
|
|
(1)
Each $0.10 increase (decrease) in the assumed public offering price per unit would increase (decrease) the amount of cash and cash equivalents, working capital, total assets, and total stockholders’ equity by approximately $0.5 million, assuming the number of securities offered by us, as set forth on the cover page of this prospectus, remains the same, no pre-funded warrants are issued and no warrants are exercised, and after deducting placement agent fees and estimated offering expenses payable by us. We may also increase or decrease the number of securities to be issued in this offering. Each increase (decrease) of 1.0 million units offered by us would increase (decrease) the as adjusted amount of cash and cash equivalents, working capital, total assets and total stockholders’ equity by approximately $1.9 million, assuming the assumed public offering price remains the same, no pre-funded warrants are issued and no warrants are exercised, and after deducting placement agent fees and estimated offering expenses payable by us. The as adjusted information discussed above is illustrative only and will be adjusted based on the actual public offering price and other terms of this offering determined between us, the placement agents, and the investors in this offering at pricing.
Except as otherwise indicated herein, the number of shares of our common stock to be outstanding afterthis offering is based on 5,078,557 shares outstanding as of March 31, 2023, and excludes:
•
1,160,114 shares of common stock issuable upon exercise of options to purchase our common stock outstanding as of March 31, 2023 at a weighted average exercise price of $12.29 per share;
•
14,270 shares of common stock issuable upon exercise of warrants outstanding as of March 31, 2023 at an exercise price of $201.60 per share;
•
1,114,278 shares of common stock issuable upon exercise of Series B Warrants at an exercise price of $8.00 per share; and
•
750 shares of common stock issuable upon exercise of immediately vested warrants at an exercise price of $116.00 per share.
DILUTION
If you invest in our securities in this offering, your ownership interest will be diluted immediately to the extent of the difference between the public offering price per unit and the as adjusted net tangible book value per share of our common stock after this offering.
Our historical net tangible book value as of March 31, 2023 was $1.1 million, or $0.23 per share of our common stock. Historical net tangible book value per share represents the amount of our total tangible assets less total liabilities, divided by the number of shares of our common stock outstanding as of March 31, 2023.
Our pro forma net tangible book value as of March 31, 2023 was $3.9 million, or $0.64 per share of our common stock. Pro forma net tangible book value per share represents total tangible assets less total liabilities, divided by the number of shares of our common stock outstanding as of March 31, 2023, after giving effect to the issuances of 931,600 shares of common stock and a pre-funded warrant to purchase 75,110 shares of common stock (and assuming the exercise thereof, and no exercise of the other warrants sold in such private placement) and the receipt of net proceeds of $2.7 million therefrom, in a private placement on May 3, 2023.
After giving further effect to the assumed issuance and sale of the maximum of 4,901,960 units in this offering at an assumed public offering price of $2.04 per unit, which is the last reported sale price of our common stock on Nasdaq on July 28, 2023, and after deducting the placement agent fees and estimated offering expenses payable by us, and assuming no issuance of pre-funded warrants or exercise of warrants, our pro forma as adjusted net tangible book value as of March 31, 2023 would have been $12.8 million, or $1.17 per share. This represents an immediate increase in net tangible book value per share of $0.53 to existing stockholders, compared to the pro forma net tangible book value per share, and immediate dilution of $0.87 per share to investors purchasing securities in this offering. Dilution per share to investors is determined by subtracting pro forma as adjusted net tangible book value per share after this offering from the public offering price per share paid by investors in this offering. The following table illustrates this dilution on a per share basis:
|
Assumed public offering price per unit
|
|
|
|
|
|
|
|
|
|
$ |
2.04 |
|
|
|
Historical net tangible book value per share
|
|
|
|
$ |
0.23 |
|
|
|
|
|
|
|
|
|
Increase per share attributable to pro forma adjustments
|
|
|
|
|
0.41 |
|
|
|
|
|
|
|
|
|
Pro forma net tangible book value per share at March 31, 2023
|
|
|
|
$ |
0.64 |
|
|
|
|
|
|
|
|
|
Increase in pro forma net tangible book value per share attributable to new investors
|
|
|
|
|
|
|
|
|
|
|
0.53 |
|
|
|
Pro forma as adjusted net tangible book value per share after this offering
|
|
|
|
|
|
|
|
|
|
$ |
1.17 |
|
|
|
Dilution per share to investors purchasing securities in this offering
|
|
|
|
|
|
|
|
|
|
$ |
0.87 |
|
|
Each $0.10 increase (decrease) in the assumed public offering price of $2.04 per unit, which is the last reported sale price of our common stock on Nasdaq on July 28, 2023, would increase (decrease) our pro forma as adjusted net tangible book value per share after this offering by approximately $0.04 and the dilution per share to investors purchasing securities in this offering by $0.06 assuming the maximum number of securities offered by us, as set forth on the cover page of this prospectus, remains the same, no pre-funded warrants are issued and no warrants are exercised, and after deducting placement agent fees and estimated offering expenses payable by us. We may also increase or decrease the number of securities to be issued in this offering. Each increase (decrease) of 1.0 million units offered by us would increase (decrease) our pro forma as adjusted net tangible book value per share and the dilution per share to investors purchasing securities in this offering by $0.06 and $(0.06), respectively assuming that the assumed public offering price remains the same, no pre-funded warrants are issued and no warrants are exercised, and after deducting placement agent fees and estimated offering expenses payable by us. The information discussed above is illustrative only and will be adjusted based on the actual public offering price and other terms of this offering as determined between us, the placement agents, and the investors in this offering at pricing.
Except as otherwise indicated herein, the number of shares of our common stock to be outstanding after this offering is based on 5,078,557 shares outstanding as of March 31, 2023, and excludes:
•
1,160,114 shares of common stock issuable upon exercise of options to purchase our common stock outstanding as of March 31, 2023 at a weighted average exercise price of $12.29 per share;
•
14,270 shares of common stock issuable upon exercise of warrants outstanding as of March 31, 2023 at an exercise price of $201.60 per share;
•
1,114,278 shares of common stock issuable upon exercise of Series B Warrants at an exercise price of $8.00 per share; and
•
750 shares of common stock issuable upon exercise of immediately vested warrants at an exercise price of $116.00 per share.
DESCRIPTION OF SECURITIES WE ARE OFFERING
We are offering on a reasonable best efforts basis up to 4,901,960 units, each unit consisting of one share of our common stock and one common warrant to purchase one share of common stock. We are also offering to each purchaser whose purchase of shares of common stock in this offering would otherwise result in the purchaser, together with its affiliates and certain related parties, beneficially owning more than 4.99% of our outstanding common stock immediately following the consummation of this offering, the opportunity to purchase, if the purchaser so chooses, pre-funded units consisting of one pre-funded warrant, in lieu of the share of common stock, and one common warrant. The shares of common stock or pre-funded warrants, and the accompanying common warrants, can only be purchased together in this offering but will be issued separately and will be immediately separable upon issuance. We are also registering the shares of common stock issuable from time to time upon exercise of the pre-funded warrants and common warrants offered hereby.
Common Stock
The material terms and provisions of our common stock and each other class of our securities that qualifies or limits our common stock are described in the section entitled “Description of Capital Stock” beginning on page 31 of this prospectus.
Pre-Funded Warrants
The following summary of certain terms and provisions of pre-funded warrants that are being offered hereby is not complete and is subject to, and qualified in its entirety by, the provisions of the pre-funded warrant, the form of which is filed as an exhibit to the registration statement of which this prospectus forms a part. Prospective investors should carefully review the terms and provisions of the form of pre-funded warrant for a complete description of the terms and conditions of the pre-funded warrants.
Duration and Exercise Price
Each pre-funded warrant offered hereby will have an initial exercise price per share equal to $0.001. The pre-funded warrants will be immediately exercisable and may be exercised at any time until the pre-funded warrants are exercised in full. The exercise price and number of shares of common stock issuable upon exercise is subject to appropriate adjustment in the event of stock dividends, stock splits, reorganizations or similar events affecting our common stock and the exercise price.
Exercisability
The pre-funded warrants will be exercisable, at the option of each holder, in whole or in part, by delivering to us a duly executed exercise notice accompanied by payment in full for the number of shares of our common stock purchased upon such exercise (except in the case of a cashless exercise as discussed below). A holder (together with its affiliates) may not exercise any portion of the pre-funded warrant to the extent that the holder would own more than 4.99% of the outstanding common stock immediately after exercise (the “Beneficial Ownership Limitation”), except that upon at least 61 days’ prior notice from the holder to us, the holder may increase the Beneficial Ownership Limitation to a percentage not to exceed 19.99%. The Beneficial Ownership Limitation shall not apply to Jack W. Schuler or any of his affiliates. No fractional shares of common stock will be issued in connection with the exercise of a pre-funded warrant. In lieu of fractional shares, we will pay the holder an amount in cash equal to the fractional amount multiplied by the exercise price.
Cashless Exercise
In lieu of making the cash payment otherwise contemplated to be made to us upon such exercise in payment of the aggregate exercise price, the holder may elect instead to receive upon such exercise (either in whole or in part) a reduced number of shares of common stock determined according to a formula set forth in the pre-funded warrants.
Fundamental Transaction
In the event of a fundamental transaction, as described in the pre-funded warrants and generally including any reorganization, recapitalization or reclassification of our common stock, the sale, transfer or other disposition of all or substantially all of our properties or assets, our consolidation or merger with or into another person, the acquisition of more than 50% of our outstanding common stock, or any person or group becoming the beneficial owner of 50% of the voting power represented by our outstanding common stock, the holders of the pre-funded warrants will be entitled to receive upon exercise of the pre-funded warrants the kind and amount of securities, cash or other property that the holders would have received had they exercised the pre-funded warrants immediately prior to such fundamental transaction.
Transferability
Subject to applicable laws, a pre-funded warrant may be transferred at the option of the holder upon surrender of the pre-funded warrant to us together with the appropriate instruments of transfer.
Exchange Listing
We do not intend to list the pre-funded warrants on any securities exchange or nationally recognized trading system.
Rights as a Stockholder
Except as otherwise provided in the pre-funded warrants or by virtue of such holder’s ownership of shares of our common stock, the holders of the pre-funded warrants do not have the rights or privileges of holders of our common stock, including any voting rights, until they exercise their pre-funded warrants.
Common Warrants
The following summary of certain terms and provisions of the common warrants that are being offered hereby is not complete and is subject to, and qualified in its entirety by, the provisions of the common warrants, the form of which is filed as an exhibit to the registration statement of which this prospectus forms a part. Prospective investors should carefully review the terms and provisions of the form of common warrant for a complete description of the terms and conditions of the common warrants.
Duration and Exercise Price
Each common warrant offered hereby will have an initial exercise price per share equal to $ per share. The common warrants will be immediately exercisable and will expire on the fifth anniversary of the original issuance date. The exercise price and number of shares of common stock issuable upon exercise is subject to appropriate adjustment in the event of stock dividends, stock splits, reorganizations or similar events affecting our common stock and the exercise price. See also “— Anti-Dilution” below. The common warrants will be issued separately from the common stock and pre-funded warrants, and may be transferred separately immediately thereafter. A common warrant to purchase one share of our common stock will be issued for every one share of common stock (or pre-funded warrant, as applicable) purchased in this offering.
Exercisability
The common warrants will be exercisable, at the option of each holder, in whole or in part, by delivering a duly executed exercise notice accompanied by payment in full for the number of shares of our common stock purchased upon such exercise (except in the case of a cashless exercise as discussed below). Except as agreed with individual holders of warrants, a holder (together with its affiliates) may not exercise any portion of the common warrant to the extent that the holder would own more than 9.99% of the outstanding common stock immediately after exercise (the “Beneficial Ownership Limitation”), except that upon at least 61 days’ prior notice from the holder to us, the holder may increase the Beneficial Ownership Limitation to a percentage not to exceed 19.99%. The Beneficial Ownership Limitation shall not apply to Jack W. Schuler or any of his affiliates. No fractional shares of common stock will be issued in connection with the exercise
of a common warrant. In lieu of fractional shares, we will pay the holder an amount in cash equal to the fractional amount multiplied by the exercise price.
Cashless Exercise
If, at the time a holder exercises its common warrants, a registration statement registering the issuance of the shares of common stock underlying the common warrants under the Securities Act is not then effective or available, then in lieu of making the cash payment otherwise contemplated to be made to us upon such exercise in payment of the aggregate exercise price, the holder may elect instead to receive upon such exercise (either in whole or in part) the net number of shares of common stock determined according to a formula set forth in the common warrants.
Anti-Dilution
In addition to the adjustments noted above under “— Duration and Exercise Price,” common warrants also contain anti-dilution protection upon the issuance of any common stock, securities convertible into common stock or certain other issuances at a price below the then-existing exercise price of the warrants, with certain exceptions. The terms of the warrants, including these anti-dilution protections, may make it difficult for us to raise additional capital at prevailing market terms in the future.
Fundamental Transaction
In the event of a fundamental transaction, as described in the common warrants and generally including any reorganization, recapitalization or reclassification of our common stock, the sale, transfer or other disposition of all or substantially all of our properties or assets, our consolidation or merger with or into another person, the acquisition of more than 50% of our outstanding common stock, or any person or group becoming the beneficial owner of 50% of the voting power represented by our outstanding common stock, the holders of the common warrants will be entitled to receive upon exercise of the common warrants the kind and amount of securities, cash or other property that the holders would have received had they exercised the common warrants immediately prior to such fundamental transaction. In addition, in the event of a fundamental transaction which is approved by our board of directors (but not in a fundamental transaction which is not approved by our board of directors), the holders of the common warrants have the right to require us or a successor entity to redeem the common warrant for the consideration paid in the fundamental transaction in the amount of the Black Scholes value of the unexercised portion of the common warrant on the date of the consummation of the fundamental transaction.
Transferability
Subject to applicable laws, a common warrant may be transferred at the option of the holder upon surrender of the common warrant together with the appropriate instruments of transfer.
Exchange Listing
We do not intend to list the common warrants on any securities exchange or nationally recognized trading system.
Right as a Stockholder
Except as otherwise provided in the common warrants or by virtue of such holder’s ownership of shares of our common stock, the holders of the common warrants do not have the rights or privileges of holders of our common stock, including any voting rights, until they exercise their common warrants.
MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES TO HOLDERS OF COMMON STOCK AND WARRANTS
The following is a summary of the material U.S. federal income tax consequences of the acquisition, ownership and disposition of our common stock and the pre-funded warrants, and the acquisition, ownership, exercise, expiration or disposition of the common warrants, but does not purport to be a complete analysis of all the potential tax considerations relating thereto. This summary is based upon the provisions of the Internal Revenue Code of 1986, as amended (the ‘‘Code”), Treasury Regulations promulgated thereunder, administrative rulings and judicial decisions, all as of the date hereof. These authorities may be changed or subject to differing interpretations, possibly with retroactive effect, so as to result in U.S. federal income tax consequences different from those set forth below. We have not sought and will not seek any ruling from the Internal Revenue Service (the “IRS”) with respect to the statements made and the conclusions reached in the following summary, and there can be no assurance that the IRS or a court will agree with such statements and conclusions.
This summary also does not address the tax considerations arising under the laws of any U.S. state or local or any non-U.S. jurisdiction, estate or gift tax, the 3.8% Medicare tax on net investment income or any alternative minimum tax consequences. In addition, this discussion does not address tax considerations applicable to a holder’s particular circumstances or to a holder that may be subject to special tax rules, including, without limitation:
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banks, insurance companies or other financial institutions;
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tax-exempt or government organizations;
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brokers or dealers in securities or currencies;
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traders in securities that elect to use a mark-to-market method of accounting for their securities holdings;
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persons that own, or are deemed to own, more than five percent of our capital stock;
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certain U.S. expatriates, citizens or former long-term residents of the United States;
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persons who hold our common stock and pre-funded warrants or common warrants as a position in a hedging transaction, “straddle,” “conversion transaction,” synthetic security, other integrated investment, or other risk reduction transaction;
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persons who do not hold our common stock and pre-funded warrants or common warrants as a capital asset within the meaning of Section 1221 of the Code (generally, for investment purposes);
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persons deemed to sell our common stock and pre-funded warrants or common warrants under the constructive sale provisions of the Code;
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pension plans;
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partnerships, S corporations, or other entities or arrangements treated as partnerships for U.S. federal income tax purposes, or investors in any such entities;
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persons for whom our stock constitutes “qualified small business stock” within the meaning of Section 1202 of the Code;
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integral parts or controlled entities of foreign sovereigns;
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controlled foreign corporations;
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passive foreign investment companies and corporations that accumulate earnings to avoid U.S. federal income tax; or
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persons that acquire our common stock or pre-funded warrants or common warrants as compensation for services.
In addition, if a partnership, including any entity or arrangement classified as a partnership for U.S. federal income tax purposes, holds our common stock or pre-funded warrants or common warrants, the tax treatment of a partner generally will depend on the status of the partner, the activities of the partnership,
and certain determinations made at the partner level. Accordingly, partnerships that hold our common stock or pre-funded warrants or common warrants, and partners in such partnerships, should consult their tax advisors regarding the U.S. federal income tax consequences to them of the purchase, ownership, and disposition of our common stock or pre-funded warrants or common warrants.
You are urged to consult your tax advisor with respect to the application of the U.S. federal income tax laws to your particular situation, as well as any tax consequences of the purchase, ownership and disposition of our common stock or pre-funded warrants or common warrants arising under the U.S. federal estate or gift tax rules or under the laws of any U.S. state or local or any non-U.S. or other taxing jurisdiction or under any applicable tax treaty.
Definition of a U.S. Holder
For purposes of this summary, a “U.S. Holder” is any beneficial owner of our common stock or pre-funded warrants or common warrants that is a “U.S. person,” and is not a partnership, or an entity treated as a partnership or disregarded from its owner, each for U.S. federal income tax purposes. A U.S. person is any person that, for U.S. federal income tax purposes, is or is treated as any of the following:
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an individual who is a citizen or resident of the United States;
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a corporation created or organized under the laws of the United States, any state thereof, or the District of Columbia;
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an estate, the income of which is subject to U.S. federal income tax regardless of its source; or
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a trust that (1) is subject to the primary supervision of a U.S. court and the control of one or more U.S. persons (within the meaning of Section 7701(a)(30) of the Code), or (2) has a valid election in effect to be treated as a U.S. person for U.S. federal income tax purposes.
For purposes of this summary, a “Non-U.S. Holder” is any beneficial owner of our common stock or pre-funded warrants or common warrants that is not a U.S. Holder or a partnership, or other entity treated as a partnership or disregarded from its owner, each for U.S. federal income tax purposes.
Treatment of Pre-funded Warrants
Although it is not entirely free from doubt, a pre-funded warrant should be treated as a share of our common stock for U.S. federal income tax purposes and a holder of pre-funded warrants should generally be taxed in the same manner as a holder of common stock, as described below. Accordingly, no gain or loss should be recognized upon the exercise of a pre-funded warrant and, upon exercise, the holding period of a pre-funded warrant should carry over to the share of common stock received. Similarly, the tax basis of the pre-funded warrant should carry over to the share of common stock received upon exercise, increased by the exercise price of $0.001. Each holder should consult his, her or its own tax advisor regarding the risks associated with the acquisition of pre-funded warrants pursuant to this offering (including potential alternative characterizations). The balance of this discussion generally assumes that the characterization described above is respected for U.S. federal income tax purposes.
Allocation of Purchase Price for Investment Units
Each pre-funded warrant will be sold as a unit with a common warrant and each share of common stock will be sold as a unit with a common warrant, and each of the items is referred to as a component of a unit. The purchase price for each investment unit should be allocated between the two components in proportion to their relative fair market values at the time the unit is purchased by the holder. This allocation of the purchase price for each unit will establish the holder’s initial tax basis for U.S. federal income tax purposes in the components included in each unit: the pre-funded warrants and common warrants in one case, and the common stock and common warrants in the other. Each holder should consult his, her or its own tax advisor regarding the allocation of the purchase price for a unit.
Tax Consequences to U.S. Holders
Distributions on Common Stock
As discussed in ‘‘Dividend Policy,” we do not currently expect to make distributions on our common stock. In the event that we do make distributions of cash or other property, distributions paid on common
stock, other than certain pro rata distributions of common stock, will be treated as a dividend to the extent paid out of our current or accumulated earnings and profits and will be includible in income by the U.S. Holder and taxable as ordinary income when received. If a distribution exceeds our current and accumulated earnings and profits, the excess will be first treated as a tax-free return of the U.S. Holder’s investment, up to the U.S. Holder’s tax basis in the common stock. Any remaining excess will be treated as a capital gain. Subject to applicable limitations, dividends paid to certain non-corporate U.S. Holders may be eligible for taxation as “qualified dividend income” and therefore may be taxable at rates applicable to long-term capital gains. U.S. Holders should consult their tax advisers regarding the availability of the reduced tax rate on dividends in their particular circumstances. Dividends received by a corporate U.S. Holder will be eligible for the dividends-received deduction if the U.S. Holder meets certain holding period and other applicable requirements.
Constructive Dividends on Common Warrants
Under Section 305 of the Code, an adjustment to the number of shares of common stock that will be issued on the exercise of the common warrants, or an adjustment to the exercise price of the common warrants, may be treated as a constructive distribution to a U.S. Holder of the common warrants if, and to the extent that, such adjustment has the effect of increasing such U.S. Holder’s proportionate interest in our “earnings and profits” or assets, depending on the circumstances of such adjustment (for example, if such adjustment is to compensate for a distribution of cash or other property to our stockholders). Adjustments to the exercise price of a common warrant made pursuant to a bona fide reasonable adjustment formula that has the effect of preventing dilution of the interest of the holders of the warrants should generally not result in a constructive distribution. Any constructive distributions would generally be subject to the tax treatment described above under “— Distributions on Common Stock”.
Sale or Other Disposition of Common Stock
For U.S. federal income tax purposes, gain or loss realized on the sale or other disposition of common stock will be capital gain or loss, and will be long-term capital gain or loss if the U.S. Holder held the common stock for more than one year. The amount of the gain or loss will equal the difference between the U.S. Holder’s tax basis in the common stock disposed of and the amount realized on the disposition. Long-term capital gains recognized by non-corporate U.S. Holders will be subject to reduced tax rates. The deductibility of capital losses is subject to limitations.
Sale or Other Disposition, Exercise or Expiration of Common Warrants
For U.S. federal income tax purposes, gain or loss realized on the sale or other disposition of a common warrant (other than by exercise) will be capital gain or loss and will be long-term capital gain or loss if the U.S. Holder held the common warrant for more than one year at the time of the sale or other disposition. The amount of the gain or loss will equal the difference between the U.S. Holder’s tax basis in the common warrant disposed of and the amount realized on the disposition.
In general, a U.S. Holder will not be required to recognize income, gain or loss upon the exercise of a common warrant by payment of the exercise price, except to the extent of cash paid in lieu of a fractional share. A U.S. Holder’s tax basis in a share of common stock received upon exercise will be equal to the sum of (1) the U.S. Holder’s tax basis in the common warrant and (2) the exercise price of the common warrant. A U.S. Holder’s holding period in the stock received upon exercise will commence on the day or the day after such U.S. Holder exercises the common warrant. No discussion is provided herein regarding the U.S. federal income tax treatment on the exercise of a common warrant on a cashless basis, and U.S. Holders are urged to consult their tax advisors as to the exercise of a warrant on a cashless basis.
If a common warrant expires without being exercised, a U.S. Holder will recognize a capital loss in an amount equal to such U.S. Holder’s tax basis in the common warrant. This loss will be long-term capital loss if, at the time of the expiration, the U.S. Holder’s holding period in the common warrant is more than one year. The deductibility of capital losses is subject to limitations.
Sale or Other Disposition, Exercise or Expiration of Pre-funded Warrants
For U.S. federal income tax purposes, gain or loss realized on the sale or other disposition of pre-funded warrants will be capital gain or loss, and will be long-term capital gain or loss if the U.S. Holder held the pre-funded warrant for more than one year. A U.S. Holder’s holding period in the stock received upon exercise will commence on the day or the day such U.S. Holder purchased the pre-funded warrant. The amount of the gain or loss will equal the difference between the U.S. Holder’s tax basis in the pre-funded warrant or common stock disposed of and the amount realized on the disposition. Long-term capital gains recognized by non-corporate U.S. Holders will be subject to reduced tax rates. The deductibility of capital losses is subject to limitations.
In general, a U.S. Holder will not be required to recognize income, gain or loss upon the exercise of a pre-funded warrant by payment of the exercise price, except to the extent of cash paid in lieu of a fractional share. A U.S. Holder’s tax basis in a share of common stock received upon exercise will be equal to the sum of (1) the U.S. Holder’s tax basis in the pre-funded warrant and (2) the exercise price of the pre-funded warrant. No discussion is provided herein regarding the U.S. federal income tax treatment on the exercise of a pre-funded warrant on a cashless basis, and U.S. Holders are urged to consult their tax advisors as to the exercise of a pre-funded warrant on a cashless basis.
If a pre-funded warrant expires without being exercised, a U.S. Holder will recognize a capital loss in an amount equal to such U.S. Holder’s tax basis in the pre-funded warrant. This loss will be long-term capital loss if, at the time of the expiration, the U.S. Holder’s holding period in the pre-funded warrant is more than one year. The deductibility of capital losses is subject to limitations.
Tax Consequences to Non-U.S. Holders
Distributions
As discussed in ‘‘Dividend Policy,” we do not anticipate paying any dividends on our common stock in the foreseeable future. If we make distributions on our common stock or are constructively deemed to have made distributions on our common warrants or pre-funded warrants (as described above under “— Constructive Dividends on Common Warrants and Pre-funded Warrants”), those payments will constitute dividends for U.S. federal income tax purposes to the extent we have current or accumulated earnings and profits, as determined under U.S. federal income tax principles. To the extent those distributions exceed both our current and our accumulated earnings and profits, they will constitute a return of capital and will first reduce a Non-U.S. Holder’s basis in our common stock or common warrants or pre-funded warrants, as applicable, but not below zero. Any excess will be treated as capital gain and will be treated as described below under the “— Gain on Sale or Other Disposition of Common Stock or Common Warrants” section. Any such distributions would be subject to the discussions below regarding back-up withholding and Foreign Account Tax Compliance Act (‘‘FATCA”).
Subject to the discussion below on effectively connected income, any dividend paid or constructively deemed to have been paid to a Non-U.S. Holder generally will be subject to U.S. withholding tax either at a rate of 30% of the gross amount of the dividend or such lower rate as may be specified by an applicable income tax treaty. To receive a reduced treaty rate, a Non-U.S. Holder must provide us or our agent with an IRS Form W-8BEN, IRS Form W-8 BEN-E or another appropriate version of IRS Form W-8 (or a successor form), which must be updated periodically, and which, in each case, must certify qualification for the reduced rate. Non-U.S. Holders should consult their tax advisors regarding their entitlement to benefits under any applicable income tax treaty.
Dividends paid to a Non-U.S. Holder that are effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States and that are not eligible for relief from U.S. (net basis) income tax under an applicable income tax treaty, generally are exempt from the (gross basis) withholding tax described above. To obtain this exemption from withholding tax, the Non-U.S. Holder must provide the applicable withholding agent with an IRS Form W-8ECI or successor form or other applicable IRS Form W-8 certifying under penalty of perjury that the dividends are effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States. Such effectively connected dividends, if not eligible for relief under a tax treaty, would not be subject to a withholding tax, but would be
taxed at the same graduated rates applicable to U.S. persons, net of certain deductions and credits and if, in addition, the Non-U.S. Holder is a corporation, may also be subject to a branch profits tax at a rate of 30% (or such lower rate as may be specified by an applicable income tax treaty).
If you are eligible for a reduced rate of withholding tax pursuant to a tax treaty, you may be able to obtain a refund of any excess amounts withheld if you timely file an appropriate claim for refund with the IRS.
Exercise or Expiration of Common Warrants and Pre-funded Warrants
In general, a Non-U.S. Holder will not be required to recognize income, gain or loss upon the exercise of a common warrant or pre-funded warrant by payment of the exercise price, except to the extent of cash paid in lieu of a fractional share. However, no discussion is provided herein regarding the U.S. federal income tax treatment on the exercise of a common warrant or pre-funded warrant on a cashless basis, and Non-U.S. Holders are urged to consult their tax advisors as to the exercise of a common warrant or pre-funded warrant on a cashless basis.
If a common warrant or pre-funded warrant expires without being exercised, a Non-U.S. Holder that is engaged in a U.S. trade or business to which any income from the common warrant or pre-funded warrant would be effectively connected or who is present in the United States for a period or periods aggregating 183 days or more during the calendar year in which the expiration occurs (and certain other conditions are met) will recognize a capital loss in an amount equal to such Non-U.S. Holder’s tax basis in the common warrant or pre-funded warrant.
Gain on Sale or Other Disposition of Common Stock, Pre-funded Warrants, or Common Warrants
Subject to the discussion below regarding backup withholding and FATCA, a Non-U.S. Holder generally will not be required to pay U.S. federal income tax on any gain realized upon the sale or other disposition of our common stock, pre-funded warrants, or common warrants unless:
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the gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States and not eligible for relief under an applicable income tax treaty, in which case the Non-U.S. Holder will be required to pay tax on the net gain derived from the sale under regular graduated U.S. federal income tax rates, and for a Non-U.S. Holder that is a corporation, such Non-U.S. Holder may be subject to the branch profits tax at a 30% rate (or such lower rate as may be specified by an applicable income tax treaty) on such effectively connected gain, as adjusted for certain items;
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the Non-U.S. Holder is an individual who is present in the United States for a period or periods aggregating 183 days or more during the calendar year in which the sale or disposition occurs and certain other conditions are met, in which case the Non-U.S. Holder will be required to pay a flat 30% tax on the gain derived from the sale, which tax may be offset by U.S. source capital losses (even though the Non-U.S. Holder is not considered a resident of the United States) (subject to applicable income tax or other treaties); or
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we are a “U.S. real property holding corporation” (a ‘‘USRPHC”) for U.S. federal income tax purposes, or a USRPHC, at any time within the shorter of the five-year period preceding the disposition or the Non-U.S. Holder’s holding period for our common stock, pre-funded warrants, or common warrants. We believe we are not currently and do not anticipate becoming a USRPHC. However, because the determination of whether we are a USRPHC depends on the fair market value of our United States real property interests relative to the fair market value of our other business assets, there can be no assurance that we will not become a USRPHC in the future. Even if we become a USRPHC, however, gain arising from the sale or other taxable disposition by a Non-U.S. Holder of our common stock will not be subject to United States federal income tax if (A) in the case of our common stock, (a) shares of our common stock are “regularly traded,” as defined by applicable Treasury Regulations, on an established securities market, such as Nasdaq, and (b) the Non-U.S. Holder owns or owned, actually and constructively, 5% or less of the shares of our common stock throughout the five-year period ending on the date of the sale or exchange; and (B) in the case of our common warrants or pre-funded warrants, either (a)(i) shares of our common stock are “regularly
traded,” as defined by applicable Treasury Regulations, on an established securities market, such as Nasdaq, (ii) our common warrants or pre-funded warrants, as the case may be, are not considered regularly traded on an established securities market and the Non-U.S. Holder does not own, actually or constructively, common warrants and pre-funded warrants with a fair market value greater than the fair market value of 5% of the shares of our common stock, determined as of the date that such Non-U.S. Holder acquired its common warrants or pre-funded warrants, as applicable, or (b)(i) our common warrants or pre-funded warrants are considered regularly traded on an established securities market, and (ii) the Non-U.S. Holder owns or owned, actually and constructively, 5% or less of our common warrants or pre-funded warrants throughout the five-year period ending on the date of the sale or exchange. Our common warrants and pre-funded warrants are not expected to be regularly traded on an established securities market. If the foregoing exceptions do not apply, such Non-U.S. Holder’s proceeds received on the disposition of shares will generally be subject to withholding at a rate of 15% and such Non-U.S. Holder will generally be taxed on any gain in the same manner as gain that is effectively connected with the conduct of a U.S. trade or business, except that the branch profits tax generally will not apply.
Information Reporting and Backup Withholding
Information returns may be filed with the IRS in connection with distributions on common stock or constructive dividends on common warrants and pre-funded warrants, and the proceeds of a sale or other disposition of common stock or common warrants or pre-funded warrants. A non-exempt U.S. Holder may be subject to U.S. backup withholding on these payments if it fails to provide its taxpayer identification number to the withholding agent and comply with certification procedures or otherwise establish an exemption from backup withholding.
A Non-U.S. Holder may be subject to U.S. information reporting and backup withholding on these payments unless the Non-U.S. Holder complies with certification procedures to establish that it is not a U.S. person (within the meaning of the Code). The certification requirements generally will be satisfied if the Non-U.S. Holder provides the applicable withholding agent with a statement on the applicable IRS Form W-8BEN or IRS Form W-8BEN-E (or suitable substitute or successor form), together with all appropriate attachments, signed under penalties of perjury, stating, among other things, that such Non-U.S. Holder is not a U.S. Person. Applicable Treasury Regulations provide alternative methods for satisfying this requirement. In addition, the amount of distributions on common stock or constructive dividends on common stock paid to a Non-U.S. Holder, and the amount of any U.S. federal tax withheld therefrom, must be reported annually to the IRS and the holder. This information may be made available by the IRS under the provisions of an applicable tax treaty or agreement to the tax authorities of the country in which the Non-U.S. Holder resides.
Payment of the proceeds of the sale or other disposition of common stock, pre-funded warrants, or common warrants to or through a non-U.S. office of a U.S. broker or of a non-U.S. broker with certain specified U.S. connections generally will be subject to information reporting requirements, but not backup withholding, unless the Non-U.S. Holder certifies under penalties of perjury that it is not a U.S. person or an exemption otherwise applies. Payments of the proceeds of a sale or other disposition of common stock, pre-funded warrants, or common warrants to or through a U.S. office of a broker generally will be subject to information reporting and backup withholding, unless the Non-U.S. Holder certifies under penalties of perjury that it is not a U.S. person or otherwise establishes an exemption.
Backup withholding is not an additional tax. The amount of any backup withholding from a payment generally will be allowed as a credit against the holder’s U.S. federal income tax liability and may entitle the holder to a refund, provided that the required information is timely furnished to the IRS.
Foreign Account Tax Compliance Act
FATCA imposes withholding tax on certain types of payments made to foreign financial institutions and certain other non-U.S. entities. The legislation imposes a 30% withholding tax on dividends on, or, subject to the discussion of certain proposed Treasury Regulations below, gross proceeds from the sale or other disposition of, our common stock, pre-funded warrants, or common warrants paid to a “foreign financial institution” or to certain “non-financial foreign entities” (each as defined in the Code), unless (i) the
foreign financial institution undertakes certain diligence and reporting obligations, (ii) the non-financial foreign entity either certifies it does not have any “substantial United States owners” (as defined in the Code) or furnishes identifying information regarding each substantial United States owner, or (iii) the foreign financial institution or non-financial foreign entity otherwise qualifies for an exemption from these rules. If the payee is a foreign financial institution and is subject to the diligence and reporting requirements in (i) above, it must enter into an agreement with the U.S. Treasury requiring, among other things, that it undertake to identify accounts held by “specified United States persons” or “United States-owned foreign entities” (each as defined in the Code), annually report certain information about such accounts, and withhold 30% on payments to account holders whose actions prevent it from complying with these reporting and other requirements. If the country in which a payee is resident has entered into an “intergovernmental agreement” with the United States regarding FATCA, that agreement may permit the payee to report to that country rather than to the U.S. Department of the Treasury. The U.S. Treasury recently released proposed Treasury Regulations which, if finalized in their present form, would eliminate the federal withholding tax of 30% applicable to the gross proceeds of a sale or other disposition of our common stock. In its preamble to such proposed Treasury Regulations, the U.S. Treasury stated that taxpayers may generally rely on the proposed regulations until final regulations are issued. Prospective investors should consult their own tax advisors regarding the possible impact of these rules on their investment in our common stock, pre-funded warrants, or common warrants, and the possible impact of these rules on the entities through which they hold our common stock, pre-funded warrants or common warrants, including, without limitation, the process and deadlines for meeting the applicable requirements to prevent the imposition of this 30% withholding tax under FATCA.
THE PRECEDING DISCUSSION OF U.S. FEDERAL TAX CONSIDERATIONS IS FOR GENERAL INFORMATION ONLY. IT IS NOT TAX ADVICE. EACH PROSPECTIVE INVESTOR SHOULD CONSULT ITS TAX ADVISOR REGARDING THE PARTICULAR U.S. FEDERAL, STATE AND LOCAL AND NON-U.S. TAX CONSEQUENCES OF PURCHASING, HOLDING AND DISPOSING OF OUR COMMON STOCK, PRE-FUNDED WARRANTS OR COMMON WARRANTS, INCLUDING THE CONSEQUENCES OF ANY PROPOSED CHANGE IN APPLICABLE LAWS.
PLAN OF DISTRIBUTION
We, Maxim Group LLC, and Lake Street Capital Markets, LLC have entered into a placement agency agreement with respect to the up to 4,901,960 units being offered. The placement agents are not purchasing or selling any securities, nor are they required to arrange for the purchase and sale of any specific number or dollar amount of securities, other than to use their “reasonable best efforts” to arrange for the sale of the securities by us. Therefore, we may not sell the entire amount of securities being offered.
Investors purchasing securities offered hereby will have the option to execute a securities purchase agreement with us. In addition to the rights and remedies available to all investors in this offering under federal and state securities laws, the investors which enter into a securities purchase agreement will also be able to bring claims of breach of contract against us. Investors who do not enter into a securities purchase agreement shall rely solely on this prospectus in connection with the purchase of our securities in this offering. The placement agents may engage one or more subagents or selected dealers in connection with this offering.
The placement agency agreement provides that the placement agents’ obligations are subject to conditions contained in the placement agency agreement.
We expect this offering to be completed not later than two business days following the commencement of sales in this offering (the effective date of the registration statement of which this prospectus forms a part) and we will deliver all securities to be issued in connection with this offering delivery versus payment or receipt versus payment, as the case may be, upon receipt of investor funds received by us. Accordingly, neither we nor the placement agents have made any arrangements to place investor funds in an escrow account or trust account since the placement agents will not receive investor funds in connection with the sale of the securities offered hereunder.
Indemnification
We have agreed to indemnify the placement agents against certain liabilities, including liabilities under the Securities Act and liabilities arising from breaches of representations and warranties contained in the placement agency agreement, or to contribute to payments that the placement agents may be required to make in respect of those liabilities.
Placement Agent Fees, Commissions and Expenses
Upon the closing of this offering, we will pay the placement agents a cash transaction fee equal to 7% of the aggregate gross cash proceeds to us from the sale of the securities in the offering. In addition, we will reimburse the placement agents for certain of their out-of-pocket expenses incurred in connection with this offering, including up to $85,000 for the placement agents’ legal fees. If this offering is not completed, we have agreed to reimburse the placement agents for their actual expenses in an amount not to exceed $25,000. In accordance with FINRA Rule 5110, these reimbursed fees and expenses may be deemed to be underwriting compensation in connection with this offering.
The following table shows the public offering price, placement agent fees and proceeds, before expenses, to us, assuming the sale of all units in this offering, no sale of any pre-funded warrants in this offering, and no exercise of any warrants.
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Per Unit
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Total
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Public offering price
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$ |
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$ |
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Placement agent fees
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$ |
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$ |
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Proceeds, before expenses, to us
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$ |
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$ |
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We estimate that the total expenses of the offering payable by us, excluding the total placement agent fees, will be approximately $250,000.
Lock-Up Agreements and Trading Restrictions
Our executive officers and directors have agreed to a 60 day “lock-up” from the effective date of this prospectus, pursuant to which the signatories to such agreements have agreed not to sell, pledge or otherwise
dispose of any shares of common stock that they beneficially own, including the issuance of common stock upon the exercise of currently outstanding convertible securities and options and options which may be issued, without the prior written consent of the placement agents.
The placement agents have no present intention to waive or shorten the lock-up period; however, the terms of the lock-up agreements may be waived at their discretion. In determining whether to waive the terms of the lockup agreements, the placement agents may base their decision on its assessment of the relative strengths of the securities markets and companies similar to ours in general, and the trading pattern of, and demand for, our securities in general.
In addition, the securities purchase agreement provides that we will not, for a period of 45 days following the effective date of this prospectus, offer, sell or distribute any of our securities, subject to certain exceptions.
Stabilization
The rules of the SEC generally prohibit the placement agents, who may be deemed underwriters under the Securities Act in connection with this offering, from trading in our securities on the open market during this offering. However, the placement agents are allowed to engage in some open market transactions and other activities during this offering that may cause the market price of our securities to be above or below that which would otherwise prevail in the open market. These activities may include stabilization, short sales and over-allotments, syndicate covering transactions and penalty bids.
•
Stabilizing transactions consist of bids or purchases made for the purpose of preventing or slowing a decline in the market price of our securities prior to the closing of this offering.
•
Short sales occur when the placement agents sell more shares of common stock than they purchase from us in this offering. To cover the resulting short position, the placement agents may engage in syndicate covering transactions. There is no contractual limit on the size of any syndicate covering transaction.
Syndicate covering transactions are bids for or purchases of our securities on the open market by the placement agents in order to reduce a short position. Similar to other purchase transactions, the placement agents’ purchases to cover the syndicate short sales may have the effect of raising or maintaining the market price of our common stock or preventing or retarding a decline in the market price of our common stock. If the placement agents commence these activities, they may discontinue them at any time without notice. The placement agents will carry out any such transactions on The Nasdaq Capital Market.
Listing
Our common stock is listed on The Nasdaq Capital Market under the symbol “YTEN.”
Electronic Distribution
A prospectus in electronic format may be made available on websites or through other online services maintained by the placement agents of this offering, or by their affiliates. Other than the prospectus in electronic format, the information on any placement agent’s website and any information contained in any other website maintained by a placement agents is not part of this prospectus or the registration statement of which this prospectus forms a part, has not been approved and/or endorsed by us or the placement agents.
Other Relationships
The placement agents and their respective affiliates have engaged in, and may in the future engage in, investment banking and other commercial dealings in the ordinary course of business with us or our affiliates. They have received, or may in the future receive, customary fees and commissions for these transactions. In the course of their respective businesses, the placement agents and their respective affiliates may actively trade our securities or loans for their own account or for the accounts of customers, and, accordingly, the placement agents and their respective affiliates may at any time hold long or short positions in such securities or loans.
Except for services provided in connection with this offering, the placement agents have not provided any investment banking or other financial services during the 180-day period preceding the date of this prospectus and we do not expect to retain the placement agents to perform any investment banking or other financial services for at least 90 days after the date of this prospectus.
Notice to Investors in the United Kingdom
In relation to the United Kingdom, no securities have been offered or will be offered pursuant to the offer described herein to the public in the United Kingdom prior to the publication of a prospectus in relation to the securities which has been approved by the UK Financial Conduct Authority, except that the securities may be offered to the public in the United Kingdom at any time:
i.
to any legal entity which is a qualified investor as defined under Article 2 of the UK Prospectus Regulation;
ii.
to fewer than 150 natural or legal persons (other than qualified investors as defined under Article 2 of the UK Prospectus Regulation), subject to obtaining the prior consent of the placement agents for any such offer; or
iii.
in any other circumstances falling within Section 86 of the Financial Services and Markets Act 2000 (as amended) (the “FSMA”),
provided that no such offer of the securities shall require the issuer or any placement agent to publish a prospectus pursuant to Section 85 of the FSMA or supplement a prospectus pursuant to Article 23 of the UK Prospectus Regulation.
Each person in the United Kingdom who acquires any securities in the offer or to whom any offer is made will be deemed to have represented, acknowledged and agreed to and with the issuer and the placement agents that it is a qualified investor within the meaning of the UK Prospectus Regulation.
In the case of any securities being offered to a financial intermediary as that term is used in Article 5(1) of the UK Prospectus Regulation, each such financial intermediary will be deemed to have represented, acknowledged and agreed to and with the issuer and the placement agents that the securities acquired by it in the offer have not been acquired on a non-discretionary basis on behalf of, nor have they been acquired with a view to their offer or resale to, persons in circumstances which may give rise to an offer to the public other than their offer or resale in the United Kingdom to qualified investors, in circumstances in which the prior consent of the placement agents has been obtained to each such proposed offer or resale. Neither the issuer nor the placement agents have authorized, nor do they authorize, the making of any offer of securities through any financial intermediary, other than offers made by the placement agents which constitute the final placement of securities contemplated in this document.
The issuer and the placement agents and their respective affiliates will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
For the purposes of this provision, the expression an “offer to the public” in relation to the securities in the United Kingdom means the communication in any form and by any means of sufficient information on the terms of the offer and any securities to be offered so as to enable an investor to decide to purchase or subscribe for any securities and the expression “UK Prospectus Regulation” means Regulation (EU) 2017/1129 as it forms part of United Kingdom law by virtue of the European Union (Withdrawal) Act 2018.
In the United Kingdom, this document is being distributed only to, and is directed only at, persons who are “qualified investors” within the meaning of Article 2(e) of the UK Prospectus Regulation who are also: (i) persons who fall within the definition of “investment professionals” in Article 19(5) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005, as amended (the “Order”); (ii) persons falling within Article 49(2) of the Order; or (iii) persons to whom it may otherwise lawfully be communicated (all such persons together being referred to as “relevant persons”). This document must not be acted on or relied on in the United Kingdom by persons who are not relevant persons. Any investment or investment activity to which this document relates is available in the United Kingdom only to relevant persons and will be engaged in only with such persons.
Any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) may only be communicated or caused to be communicated in connection with the issue or sale of the securities in circumstances in which Section 21(1) of the FSMA does not apply. All applicable provisions of the FSMA and the Order must be complied with in respect of anything done by any person in relation to the securities in, from or otherwise involving the United Kingdom.
Notice to Investors in the European Economic Area
In relation to each member state of the European Economic Area (each a “Member State”), no securities have been offered or will be offered pursuant to the offer described herein in that Member State prior to the publication of a prospectus in relation to the securities which has been approved by the competent authority in that Member State or, where appropriate, approved in another Member State and notified to the relevant competent authority in that Member State, all in accordance with the Prospectus Regulation, except that the securities may be offered to the public in that Member State at any time:
i.
to any legal entity which is a qualified investor as defined under Article 2 of the Prospectus Regulation;
ii.
to fewer than 150 natural or legal persons (other than qualified investors as defined under Article 2 of the Prospectus Regulation), subject to obtaining the prior consent of the placement agents for any such offer; or
iii.
in any other circumstances falling within Article 1(4) of the Prospectus Regulation,
provided that no such offer of securities shall require the issuer or any placement agents to publish a prospectus pursuant to Article 3 of the Prospectus Regulation or supplement a prospectus pursuant to Article 23 of the Prospectus Regulation.
Each person in a Member State who acquires any securities in the offer or to whom any offer is made will be deemed to have represented, acknowledged and agreed to and with the issuer and the placement agents that it is a qualified investor within the meaning of the Prospectus Regulation.
In the case of any securities being offered to a financial intermediary as that term is used in Article 5(1) of the Prospectus Regulation, each such financial intermediary will be deemed to have represented, acknowledged and agreed to and with the issuer and the placement agents that the securities acquired by it in the offer have not been acquired on a non-discretionary basis on behalf of, nor have they been acquired with a view to their offer or resale to, persons in circumstances which may give rise to an offer to the public other than their offer or resale in a Member State to qualified investors, in circumstances in which the prior consent of the placement agents has been obtained to each such proposed offer or resale. Neither the issuer nor the placement agents have authorized, nor do they authorize, the making of any offer of securities through any financial intermediary, other than offers made by the placement agents which constitute the final placement of securities contemplated in this document.
The issuer and the placement agents and their respective affiliates will rely upon the truth and accuracy of the foregoing representations, acknowledgements and agreements.
For the purposes of this provision, the expression an “offer to the public” in relation to any securities in any Member State means the communication in any form and by any means of sufficient information on the terms of the offer and any securities to be offered so as to enable an investor to decide to purchase, or subscribe for, any securities and the expression “Prospectus Regulation” means Regulation (EU) 2017/1129.
In Member States, this document is being distributed only to, and is directed only at, persons who are “qualified investors” within the meaning of Article 2(e) of the Prospectus Regulation (“Qualified Investors”). This document must not be acted on or relied on in any Member State by persons who are not Qualified Investors. Any investment or investment activity to which this document relates is available in any Member State only to Qualified Investors and will be engaged in only with such persons.
DESCRIPTION OF CAPITAL STOCK
General
The following summary of our capital stock is based on certain provisions of our amended and restated certificate of incorporation, as amended, and amended and restated by-laws and on the applicable provisions of the Delaware General Corporation Law (the “DGCL”). This summary does not purport to be complete and is qualified in its entirety by reference to the applicable provisions in our amended and restated certificate of incorporation, as amended, and amended and restated by-laws and the DGCL. For a complete description you should refer to our amended and restated certificate of incorporation, as amended, and our amended and restated by-laws, copies of which have been incorporated by reference herein, and to the applicable provisions of the DGCL.
Our authorized capital stock consists of 65,000,000 shares, with a par value of $0.01 per share, of which:
•
60,000,000 shares are designated as common stock; and
•
5,000,000 shares are designated as preferred stock. Previously issued shares of Series A Convertible Preferred Stock and Series B Convertible Preferred Stock have been fully converted to common stock and are no longer outstanding.
Common Stock
The holders of our common stock are entitled to one vote per share on all matters submitted to a vote of our stockholders and do not have cumulative voting rights. Subject to preferences that may be applicable to any preferred stock outstanding at the time, the holders of outstanding shares of common stock are entitled to receive ratably any dividends declared by our board of directors out of assets legally available. Upon our liquidation, dissolution or winding up, holders of our common stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preference of any then outstanding shares of preferred stock. Holders of common stock have no preemptive or conversion rights or other subscription rights. There are no redemption or sinking fund provisions applicable to our common stock.
Preferred Stock
Our amended and restated certificate of incorporation, as amended, provides for a class of authorized stock known as preferred stock, consisting of 5,000,000 shares, $0.01 par value per share, issuable from time to time in one or more series. Our board of directors may designate the rights, preferences, privileges and restrictions of the preferred stock, including dividend rights, conversion rights, voting rights, terms of redemption, liquidation preference, sinking fund terms and the number of shares constituting any series or the designation of any series.
Warrants
As of June 30, 2023, we had warrants outstanding to purchase 2,136,008 shares of our common stock.
Anti-Takeover Provisions
Certain provisions of the DGCL and our amended and restated certificate of incorporation, as amended, and amended and restated by-laws may have the effect of delaying, deferring or discouraging another party from acquiring control of our company. These provisions, which are summarized below, may discourage certain types of coercive takeover practices and inadequate takeover bids and encourage anyone seeking to acquire control of our company to first negotiate with our board of directors. These provisions might also have the effect of preventing changes in our management and could make it more difficult to accomplish transactions that stockholders might otherwise deem to be in their best interests. However, we believe that the advantages gained by protecting our ability to negotiate with any unsolicited and potentially unfriendly acquirer outweigh the disadvantages of discouraging such proposals, because, among other reasons, the negotiation of such proposals could result in improving their terms.
Amended and Restated Certificate of Incorporation and Bylaw Provisions
Our amended and restated certificate of incorporation, as amended, and amended and restated by-laws include a number of provisions that may have the effect of delaying, deferring or discouraging another party from acquiring control of our company or preventing changes in our management, including the following:
•
Issuance of Undesignated Preferred Stock. Our board of directors has the authority, without further action by the stockholders, to issue up to 5,000,000 shares of undesignated preferred stock with rights, preferences and privileges designated from time to time by our board of directors without further action by stockholders. These rights, preferences and privileges could include dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences and sinking fund terms, any or all of which may be greater than the rights of common stock.
•
Size of the Board of Directors and Filling Vacancies. The number of directors constituting our board of directors may be set only by resolution adopted by a majority vote of our entire board of directors. Any vacancy on our board of directors, however occurring, including a vacancy resulting from an increase in the size of the board of directors, may only be filled by the affirmative vote of a majority of our directors then in office, even if less than a quorum.
•
Classified Board. Our board of directors is divided into three classes of directors, with staggered three-year terms. Only one class of directors will be elected at each annual meeting of our stockholders, with the other classes continuing for the remainder of their respective three-year terms.
•
No Cumulative Voting. Our amended and restated certificate of incorporation, as amended, and amended and restated by-laws do not permit cumulative voting in the election of directors. Cumulative voting allows a stockholder to vote a portion, or all of its shares for one or more candidates. The absence of cumulative voting makes it more difficult for a minority stockholder to gain a seat.
•
Removal of Directors. Directors can only be removed by our stockholders for cause and removal of a director will require a 75% stockholder vote.
•
No Written Consent of Stockholders. All stockholder actions are required to be taken by a vote of the stockholders at an annual or special meeting. Stockholders may not take action by written consent in lieu of a meeting. The inability of stockholders to take action by written consent means that a stockholder would need to wait until the next annual or special meeting to bring business before the stockholders for a vote.
•
Special Meetings of Stockholders. Special meetings of our stockholders may be called only by our board of directors acting pursuant to a resolution approved by the affirmative vote of a majority of the directors then in office. Only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of our stockholders.
•
Advance Notice Requirements for Stockholder Proposals and Director Nominations. Our amended and restated by-laws provide advance notice procedures for stockholders seeking to bring business before our annual meeting of stockholders or to nominate candidates for election as directors at our annual meeting of stockholders. These procedures provide that notice must be given in writing not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the first anniversary of the preceding year’s annual meeting. These procedures may have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not followed or may discourage or deter a potential acquirer from conducting a solicitation of proxies to elect its own slate of directors or otherwise attempt to obtain control of us.
•
Amendment to Amended and Restated Certificate of Incorporation and By-laws. Any amendment, repeal or modification of certain provisions of our amended and restated certificate of incorporation or amended and restated by-laws requires a 75% stockholder vote. Provisions requiring such supermajority vote include, among other things, any amendment, repeal or modification of the provisions relating to the classification of our board of directors, the requirement that stockholder actions be effected at a duly called annual or special meeting of our stockholders and the designated parties entitled to call a special meeting of our stockholders.
Section 203 of the DGCL
We are subject to Section 203 of the DGCL. In general, Section 203 of the DGCL prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a three-year period following the time that this stockholder becomes an interested stockholder, unless it satisfies one of the following conditions:
•
the transaction is approved by the board of directors prior to the time that the interested stockholder became an interested stockholder;
•
upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced; or
•
at or subsequent to such time that the stockholder became an interested stockholder, the business combination was approved by the board of directors and authorized at an annual or special meeting of stockholders by at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder.
In general, Section 203 defines “business combination” to include the following:
•
any merger or consolidation involving the corporation and the interested stockholder;
•
any sale, lease, exchange, mortgage, pledge, transfer or other disposition of the assets of the corporation with an aggregate market value of 10% or more of either the aggregate market value of all assets of the corporation on a consolidated basis or the aggregate market value of all of the outstanding stock of the corporation involving the interested stockholder;
•
subject to certain exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;
•
any transaction involving the corporation that has the effect of increasing the proportionate share of the stock or any class or series of the corporation beneficially owned by the interested stockholder; or
•
the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits by or through the corporation.
In general, Section 203 defines an “interested stockholder” as an entity or person who, together with the stockholder’s affiliates and associates (as defined in Section 203), beneficially owns, or within three years prior to the time of determination of interested stockholder status did own, 15% or more of the outstanding voting stock of the corporation.
Treatment of Options Upon Change of Control
In general, under the terms of our equity incentive plans and our executive employment agreements, in the event of certain change in control transactions, if the successor corporation does not assume our outstanding options or issue replacement awards, or if an option holder’s employment is involuntarily terminated in connection with such change in control, the vesting of the options outstanding under such plans will accelerate.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC. The transfer agent’s telephone number is (718) 921-8200.
Stock Exchange Listing
Our common stock is listed on the Nasdaq Capital Market under the symbol “YTEN”.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
LEGAL MATTERS
Covington & Burling, LLP, Boston, Massachusetts, will pass upon the validity of the securities offered by this prospectus. Pryor Cashman LLP, New York, New York is acting as counsel for the placement agents in connection with this offering.
EXPERTS
The consolidated financial statements of Yield10 Bioscience, Inc. as of December 31, 2022 and 2021 and for each of the years in the two-year period ended December 31, 2022, incorporated in this Prospectus by reference from the Yield10 Bioscience, Inc. Annual Report on Form 10-K for the year ended December 31, 2022 have been audited by RSM US LLP, an independent registered public accounting firm, as stated in their report thereon (which report expresses an unqualified opinion and includes an explanatory paragraph relating to the Yield10 Bioscience, Inc.’s ability to continue as a going concern), incorporated herein by reference, and have been incorporated in this Prospectus and Registration Statement in reliance upon such report and upon the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and other periodic reports, proxy statements and other information with the SEC. You can read our SEC filings over the Internet at the SEC’s website at www.sec.gov.
Our Internet address is www.yield10bio.com. There we make available free of charge, on or through the investor relations section of our website, annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after we electronically file such material with the SEC. The information found on our website is not part of this prospectus supplement or the accompanying prospectus and our website address is included as an inactive textual link only.
The SEC maintains a website at http://www.sec.gov that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate by reference” much of the information we file with them, which means that we can disclose important information to you by referring you to those publicly available documents. The information that we incorporate by reference in this prospectus is considered to be part of this prospectus. Because we are incorporating by reference future filings with the SEC, this prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. You should refer to the registration statement, including the exhibits, for further information about us and the securities we may offer pursuant to this prospectus. Statements in this prospectus regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement are not necessarily complete and each statement is qualified in all respects by that reference. We incorporate by reference into this prospectus the documents listed below and any future filings made by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (1) after the date of this prospectus and prior to the time that all of the securities offered by this prospectus are sold or the earlier termination of the offering, and (2) after the date of the initial registration statement of which this prospectus forms a part and prior to the effectiveness of the registration statement (except in each case in which the information contained in such documents is “furnished” and not “filed”). The documents we are incorporating by reference as of their respective dates of filing are:
•
•
•
•
Current Reports on Form 8-K filed on January 24, 2023, May 1, 2023, May 3, 2023, May 4, 2023, May 19, 2023 and May 30, 2023; and
•
The SEC file number for our filings made under the Exchange Act is 001-33133. We will provide, without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon written or oral request of such person, a copy of any or all of the documents incorporated herein by reference other than exhibits, unless such exhibits are specifically incorporated by reference into such documents or this document. Requests for such documents should be addressed in writing or by telephone to:
Investor Relations
Yield10 Bioscience, Inc.
19 Presidential Way
Woburn, Massachusetts 01801
(617) 583-1700
YIELD10 BIOSCIENCE, INC.
Up to 4,901,960 Units consisting of
4,901,960 Shares of Common Stock or 4,901,960
Pre-Funded Warrants to Purchase Up to 4,901,960 Shares of Common Stock and Common Warrants to Purchase Up to 4,901,960 Shares of Common Stock
Up to 4,901,960 Shares of Common Stock Underlying Pre-Funded Warrants
Up to 4,901,960 Shares of Common Stock Underlying Common Warrants
PRELIMINARY PROSPECTUS
, 2023
Placement Agents
Maxim Group LLCLake Street
PART II — INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth the costs and expenses, payable by the Company in connection with the registration and sale of the common stock being registered. All amounts are estimates except the SEC registration fee and FINRA filing fee.
|
|
|
Amount to
be paid
($)
|
|
SEC registration fee
|
|
|
|
$ |
1,102.00 |
|
|
FINRA filing fee
|
|
|
|
|
2,300.00 |
|
|
Legal fees and expenses
|
|
|
|
|
200,000.00 |
|
|
Accounting fees and expenses
|
|
|
|
|
34,000.00 |
|
|
Other
|
|
|
|
|
14,000.00 |
|
|
Total
|
|
|
|
$ |
251,402.00 |
|
|
Item 14. Indemnification of Directors and Officers.
Pursuant to Section 145 of the DGCL, our amended and restated by-laws provide that each director or officer of Yield10 Bioscience, who was or is made a party or is threatened to be made a party to or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of Yield10 Bioscience, or is or was serving at the request of Yield10 Bioscience as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by Yield10 Bioscience to the fullest extent authorized by the DGCL.
Pursuant to Section 102(b)(7) of the DGCL, Article 7 of our amended and restated certificate of incorporation, as amended, eliminates the liability of a director to us or our stockholders for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising:
•
from any breach of the director’s duty of loyalty to us or our stockholders;
•
from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
•
under Section 174 of the Delaware General Corporation Law; and
•
from any transaction from which the director derived an improper personal benefit.
We carry insurance policies insuring our directors and officers against certain liabilities that they may incur in their capacity as directors and officers. In addition, we have entered into indemnification agreements with our directors and officers.
The foregoing discussion of our certificate of incorporation, bylaws and Delaware law is not intended to be exhaustive and is qualified in its entirety by such certificate of incorporation, bylaws or law.
Item 15. Recent Sales of Unregistered Securities
On January 4, 2023, the Company issued 17,578 shares of common stock to participants in its Yield10 Bioscience, Inc. 401(k) Plan as quarterly matching contributions. On April 6, 2023, the Company issued 9,438 shares of common stock to participants in the Yield10 Bioscience, Inc. 401(k) Plan as a matching contribution. Each of these issuances of securities is exempt from registration pursuant to Section 3(a)(2) of the Securities Act as exempted securities. On May 3, 2023, the Company issued warrants to purchase 1,006,710 shares of common stock pursuant to the Securities Purchase Agreement by and among the Company, Jack W. Schuler Living Trust and Armistice Capital Master Fund Ltd. for gross proceeds of
$3.0 million. The issuance and sale of the securities in this private placement was exempt from registration pursuant to Section 4(a)(2) and/or Rule 506 of the Securities Act.
Item 16. Exhibits and Financial Statement Schedules.
(a)
The exhibits listed below are filed as part of or incorporated by reference into this Registration Statement on Form S-1. Where certain exhibits are incorporated by reference from a previous filing, the exhibit numbers and previous filings are identified in parentheses.
|
Exhibit
Number
|
|
|
Exhibit Description
|
|
|
Filed
Herewith
|
|
|
Incorporated
by Reference
herein from
Form or
Schedule
|
|
|
Filing
Date
|
|
|
SEC File/ Reg. Number
|
|
|
1.1
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
3.1.1
|
|
|
|
|
|
|
|
|
Form 10-Q (Exhibit 3.1)
|
|
|
8/9/2018
|
|
|
001-33133
|
|
|
3.1.2
|
|
|
|
|
|
|
|
|
Form 8-K (Exhibit 3.1)
|
|
|
1/15/2020
|
|
|
001-33133
|
|
|
3.2
|
|
|
|
|
|
|
|
|
Form 10-Q (Exhibit 3.1)
|
|
|
11/10/2021
|
|
|
001-33133
|
|
|
4.1
|
|
|
|
|
|
|
|
|
Form 10-Q (Exhibit 4.1)
|
|
|
11/12/2020
|
|
|
001-33133
|
|
|
4.2
|
|
|
|
|
|
|
|
|
Form 8-K (Exhibit 4.1)
|
|
|
7/5/2017
|
|
|
001-33133
|
|
|
4.3
|
|
|
|
|
|
|
|
|
Form S-1/A (Exhibit 4.3)
|
|
|
12/15/2017
|
|
|
333-221283
|
|
|
4.4
|
|
|
|
|
|
|
|
|
Form 8-K (Exhibit 4.1)
|
|
|
11/20/2019
|
|
|
001-33133
|
|
|
4.5
|
|
|
|
|
|
|
|
|
Form 8-K
(Exhibit 4.1)
|
|
|
5/1/2023
|
|
|
001-33133
|
|
|
4.6
|
|
|
|
|
|
|
|
|
Form 8-K
(Exhibit 4.1)
|
|
|
5/4/2023
|
|
|
001-33133
|
|
|
4.7
|
|
|
|
|
|
|
|
|
Form 8-K
(Exhibit 4.2)
|
|
|
5/4/2023
|
|
|
001-33133
|
|
|
4.8
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
4.9
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
4.10
|
|
|
|
|
|
X
|
|
|
|
|
|
5.1
|
|
|
|
|
|
X
|
|
|
|
|
|
|
|
|
|
|
|
10.1†
|
|
|
|
|
|
|
|
|
Form S-1/A (Exhibit 10.3)
|
|
|
10/20/2006
|
|
|
333-135760
|
|
|
Exhibit
Number
|
|
|
Exhibit Description
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Filed
Herewith
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Incorporated
by Reference
herein from
Form or
Schedule
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Filing
Date
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SEC File/ Reg. Number
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10.1.1†
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Form S-1/A (Exhibit 10.3.1)
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10/20/2006
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333-135760
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10.1.2†
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Form S-1/A (Exhibit 10.3.2)
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10/20/2006
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333-135760
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10.1.3†
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Form S-1/A (Exhibit 10.3.3)
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10/20/2006
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333-135760
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10.2†
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Form 10-Q (Exhibit 10.1)
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8/13/2015
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001-33133
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10.2.1†
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Form 10-K (Exhibit 10.3.1)
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3/25/2015
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001-33133
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10.2.2†
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Form 10-K (Exhibit 10.3.2)
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3/25/2015
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001-33133
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10.2.3†
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Form 10-K (Exhibit 10.3.3)
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3/25/2015
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001-33133
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10.3†
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Form 8-K (Exhibit 10.1)
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5/30/2023
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001-33133
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10.3.1†
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Form 10-K (Exhibit 10.2.5)
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3/28/2019
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001-33133
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10.3.2†
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Form 10-K (Exhibit 10.2.6)
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3/25/2020
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001-33133
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10.4†
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Form 10-K (Exhibit 10.3)
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3/30/2017
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001-33133
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10.5†
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Form 10-K (Exhibit 10.4)
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3/30/2017
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001-33133
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Exhibit
Number
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Exhibit Description
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Filed
Herewith
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Incorporated
by Reference
herein from
Form or
Schedule
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Filing
Date
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SEC File/ Reg. Number
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10.6†
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Form 10-K (Exhibit 10.6)
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3/30/2017
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001-33133
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10.7†
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Form 10-K (Exhibit 10.8)
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3/30/2017
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001-33133
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10.8†
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Form 10-K (Exhibit 10.9)
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3/30/2017
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001-33133
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10.9†
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Form S/1/A (Exhibit 10.14)
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10/20/2006
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333-135760
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10.10
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Form 8-K (Exhibit 10.1)
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6/17/2015
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001-33133
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10.11
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Lease Agreement between the Company and ARE MA Region No. 20, LLC dated January 20, 2016 for the premises located at 19 Presidential Way, Woburn, MA.
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Form 8-K (Exhibit 10.1)
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1/26/2016
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001-33133
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10.12
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Form 10-K (Exhibit 10.20)
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3/30/2017
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001-33133
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10.13
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Form 8-K (Exhibit 10.1)
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7/5/2017
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001-33133
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10.14@
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Form 10-Q (Exhibit 10.2)
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8/9/2018
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001-33133
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10.15
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Form 8-K (Exhibit 10.1)
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3/15/2019
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001-33133
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Exhibit
Number
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Exhibit Description
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Filed
Herewith
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Incorporated
by Reference
herein from
Form or
Schedule
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Filing
Date
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SEC File/ Reg. Number
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10.16
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Form 8-K (Exhibit 10.1)
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11/20/2019
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001-33133
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10.17
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Form 8-K (Exhibit 10.1)
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8/25/2020
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001-33133
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10.18@
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Form 10-K (Exhibit 10.18)
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3/14/2023
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001-33133
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10.19
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Form 8-K
(Exhibit 10.1)
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5/1/2023
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001-33133
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10.20
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Form 8-K
(Exhibit 10.1)
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5/4/2023
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001-33133
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10.21
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X
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21.1
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Form 10-K (Exhibit 21.1)
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3/16/2021
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001-33133
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23.1
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X
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23.2
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X
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24.1
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Power of Attorney (included in the signature pages to the registration statement).
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101.INS
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XBRL Instance Document.
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Form 10-K (Exhibit 101.INS)
|
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3/14/2023
|
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001-33133
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101.SCH
|
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XBRL Taxonomy Extension Schema.
|
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|
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Form 10-K (Exhibit 101.SCH)
|
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3/14/2023
|
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001-33133
|
|
|
101.CAL
|
|
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XBRL Taxonomy Extension Calculation Linkbase.
|
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|
|
|
Form 10-K (Exhibit 101.CAL)
|
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3/14/2023
|
|
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001-33133
|
|
|
Exhibit
Number
|
|
|
Exhibit Description
|
|
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Filed
Herewith
|
|
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Incorporated
by Reference
herein from
Form or
Schedule
|
|
|
Filing
Date
|
|
|
SEC File/ Reg. Number
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101.DEF
|
|
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XBRL Taxonomy Extension Definition Linkbase.
|
|
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|
|
|
Form 10-K (Exhibit 101.DEF)
|
|
|
3/14/2023
|
|
|
001-33133
|
|
|
101.LAB
|
|
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XBRL Taxonomy Extension Label Linkbase.
|
|
|
|
|
|
Form 10-K (Exhibit 101.LAB)
|
|
|
3/14/2023
|
|
|
001-33133
|
|
|
101.PRE
|
|
|
XBRL Taxonomy Extension Presentation Linkbase.
|
|
|
|
|
|
Form 10-K
(Exhibit 101.PRE)
|
|
|
3/14/2023
|
|
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001-33133
|
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107
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X
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†
Management contract or compensatory plan or arrangement.
@
Certain confidential information contained in this exhibit, marked by brackets, has been omitted pursuant to Item 601(b)(10)(iv) because the information (i) is not material and (ii) is the type of information that the Company both customarily and actually treats as private and confidential.
*
To be filed by amendment.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act to any purchaser: each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(7) (A) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(B) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Woburn, Massachusetts, on August 2, 2023.
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YIELD10 BIOSCIENCE, INC.
|
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By:
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/s/ Oliver P. Peoples
Oliver P. Peoples
President and Chief Executive Officer
|
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POWER OF ATTORNEY
We, the undersigned officers and directors of Yield10 Bioscience, Inc., hereby severally constitute and appoint Oliver P. Peoples, Charles B. Haaser, and Lynne H. Brum, and each of them singly, our true and lawful attorneys, with full power to them, and to each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-1 filed herewith, and any and all pre-effective and post-effective amendments to said registration statement, and any registration statement filed pursuant to Rule 462(b) under the Securities Act, in connection with the registration under the Securities Act of equity securities of the Company, and to file or cause to be filed the same, with all exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as each of us might or could do in person, and hereby ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, shall do or cause to be done by virtue of this Power of Attorney.
Pursuant to the requirements of the Securities Act, this registration statement on Form S-1 has been signed by the following persons in the capacities and on the dates indicated:
|
/s/ Oliver P. Peoples
Oliver P. Peoples
|
|
|
President, Chief Executive Officer and Director
(Principal Executive Officer)
|
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August 2, 2023
|
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/s/ Charles B. Haaser
Charles B. Haaser
|
|
|
Vice President, Finance, and Chief Accounting Officer
(Principal Financial and Accounting Officer)
|
|
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August 2, 2023
|
|
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*
Sherri M. Brown
|
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Director
|
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August 2, 2023
|
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*
Richard W. Hamilton
|
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Director
|
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|
August 2, 2023
|
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*
Willie Loh
|
|
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Director
|
|
|
August 2, 2023
|
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*
Anthony J. Sinskey
|
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Director
|
|
|
August 2, 2023
|
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*
Robert L. Van Nostrand
|
|
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Chairman
|
|
|
August 2, 2023
|
|
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* By:
|
|
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/s/ Oliver P. Peoples
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Oliver P. Peoples, Attorney-in-Fact
|
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Exhibit 1.1
CONFIDENTIAL
August [ ], 2023
Dr. Oliver P. Peoples, Ph.D.
President & Chief Executive Officer
Yield10 Bioscience, Inc.
19 Presidential Way, Suite 201
Woburn, MA 01801
Dear Dr. Peoples,
This agreement (the “Agreement”)
constitutes the agreement between Yield10 Bioscience, Inc., a Delaware corporation (the “Company”), Maxim Group,
LLC (“Maxim” or the “Lead Manager”), and Lake Street Capital Markets, LLC (“Lake Street”
or the “Co-Placement Agent,” and together with Maxim, the “Agents”), that the Agents shall serve
as the placement agents for the Company, on a “reasonable best efforts” basis (a “Placement”), in connection
with the proposed offerings of securities (the “Securities”) of the Company. The terms of such Placement and the Securities
shall be mutually agreed upon by the Company and the Agents and, if a direct placement, the purchasers (each, a “Purchaser”
and collectively, the “Purchasers”) and nothing herein grants the Agents the power or authority to bind the Company
or any Purchaser or creates an obligation for the Company to issue any Securities or complete the Placement. This Agreement and the documents
executed and delivered by the Company and the Purchasers in connection with the Placement shall be collectively referred to herein as
the “Transaction Documents.” The date of the closing of the Placement shall be referred to herein as the “Closing
Date.” The Company expressly acknowledges and agrees that the Agents’ obligations hereunder are on a reasonable best
efforts basis only and that the execution of this Agreement does not constitute a commitment by the Agents to purchase the Securities
and does not ensure the successful placement of the Securities or any portion thereof or the success of the Agents with respect to securing
any other financing on behalf of the Company. Maxim may retain other brokers or dealers to act as sub-agents or selected-dealers on its
behalf in connection with the Placement.
The
sale of Securities to any Purchaser will be evidenced by a purchase agreement (“Purchase Agreement”) between the Company
and such Purchaser, if required by the Purchaser, in a form reasonably satisfactory to the Company and Maxim. Prior to the signing
of any Purchase Agreement, officers of the Company with responsibility for financial affairs will be reasonably available to answer inquiries
from prospective Purchasers.
Notwithstanding anything
herein to the contrary, in the event that Maxim determines that any of the terms provided for hereunder shall not comply with a FINRA
rule, including, but not limited to, FINRA Rule 5110, then the Company shall agree to amend this Agreement in writing upon the request
of Maxim to comply with any such rules; provided that any such amendments shall not provide for terms that are less favorable to the
Company.
300 Park Avenue, 16th Floor * New York, NY 10022 * (212) 895-3500 * (800) 724-0761 * fax (212) 895-3783 * www.maximgrp.com
Yield10 Bioscience, Inc.
August [ ], 2023
Page 2
SECTION 1. COMPENSATION
AND OTHER FEES.
As compensation for the services
provided by the Agents hereunder, the Company agrees to pay to the Agents the fees set forth below with respect to the Placement:
| (i) | A cash fee payable immediately upon the
closing of the Placement equal to seven percent (7.0%) of the aggregate gross proceeds raised
in the Placement, excluding any amounts to be paid by the investors listed on Addendum
B attached hereto, for which there shall be no fee (the “Cash Fee”).
The Cash Fee shall be paid at the closing of the Placement (the “Closing”). |
| (ii) | Subject
to compliance with FINRA Rule 5110(f)(2)(D), the Company also agrees, in case of a Closing
of the Placement, to reimburse the Lead Manager for all reasonable and documented out-of-pocket
expenses incurred, including the reasonable fees, costs and disbursements of its legal counsel,
in an amount not to exceed an aggregate of $85,000. The Company will reimburse Lead Manager
directly upon the Closing of the Placement from the gross proceeds raised in the Placement. |
SECTION 2. RESERVED.
SECTION 3. REPRESENTATIONS
AND WARRANTIES. The Company makes to the Agents all of the representations and warranties which the Company makes to the Purchasers
in the Purchase Agreement, and in addition makes the following representation:
FINRA
Affiliations. There are no affiliations with any FINRA member firm among the Company’s officers, directors or, to the
knowledge of the Company, any five percent (5%) or greater stockholder of the Company, except as set forth in the Company’s public
filings under the Securities Exchange Act of 1934, as amended, with the Securities and Exchange Commission (the “SEC Filings”).
SECTION 4. REPRESENTATIONS
OF AGENTS. Each Agent represents and warrants that it is (i) a member in good standing of FINRA, (ii) registered as a broker/dealer
under the Securities Exchange Act of 1934 (the “Exchange Act”), and (iii) licensed as a broker/dealer under the laws
of the States applicable to the offers and sales of Securities by such Agent. Maxim or Lake Street, as applicable, will immediately notify
the Company in writing of any change in its status as such. Each Agent covenants that it will use its reasonable best efforts to conduct
the Transaction hereunder in compliance with the provisions of this Agreement and the requirements of applicable law. Except as required
by law or as contemplated by this agreement, the Agents will keep confidential all material nonpublic information, including information
regarding the Transaction contemplated hereunder, provided to it by the Company or its affiliates or advisors and use such information
only for the purposes contemplated herein.
SECTION 5. INDEMNIFICATION.
The Company agrees to the indemnification and other agreements set forth in the Indemnification Provisions (the “Indemnification”)
attached hereto as Addendum A, the provisions of which are incorporated herein by reference and shall survive the termination or expiration
of this Agreement.
SECTION 6. ENGAGEMENT
TERM. Maxim’s engagement hereunder shall become effective on the date hereof and shall continue until the earlier of (i) the
final Closing Date of the Placement and (ii) the date a party terminates the engagement according to the terms of the next sentence
(such date, the “Termination Date”). After an initial period lasting until October 31, 2023, the Agreement may
be terminated at any time by either party upon thirty (30) days’ written notice to the other party, effective upon receipt of written
notice to that effect by the other party. The Agreement may not be earlier terminated other than for Cause (defined hereinafter). If
there is a Closing of the Placement, or if the Termination Date occurs prior to Closing of the Placement (other than for Cause), then
if within six (6) months following such time, the Company completes any financing of equity, equity-linked, convertible or debt
or other capital raising activity with, or receives any proceeds from, any of the investors contacted or introduced by Maxim during the
term of this Agreement, then the Company will pay Maxim upon the closing of such financing or receipt of such proceeds the compensation
set forth in Section 1 herein. “Cause,” for the purpose of this Agreement, shall mean, as determined by a court
of competent jurisdiction, Maxim’s gross negligence, willful misconduct, or a material breach of this Agreement, after being notified
in writing of such conduct, and not curing such alleged conduct within ten (10) business days of notification of such alleged wrongful
conduct. Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification, contribution,
future rights and the Company’s obligations to pay fees and reimburse expenses contained herein and the Company’s obligations
contained in the Indemnification Provisions will survive any expiration or termination of this Agreement. Maxim agrees not to use any
confidential information concerning the Company provided to Maxim by the Company for any purposes other than those contemplated under
this Agreement.
Members FINRA & SIPC
300 Park Avenue, 16th Floor * New York, NY 10022 * (212) 895-3500 * (800) 724-0761 * fax (212) 895-3783 * www.maximgrp.com
Yield10 Bioscience, Inc.
August [ ], 2023
Page 3
SECTION 7. RESERVED.
SECTION 8. LEAD
MANAGER INFORMATION. The Company agrees that any information or advice rendered by Maxim in connection with this engagement is for
the confidential use of the Company only in their evaluation of the Placement and, except as otherwise required by law, the Company will
not disclose or otherwise refer to the advice or information in any manner without Maxim’s prior written consent.
SECTION 9. NO
FIDUCIARY RELATIONSHIP. This Agreement does not create, and shall not be construed as creating rights enforceable by any person or
entity not a party hereto, except those entitled hereto by virtue of the Indemnification Provisions hereof. The Company acknowledges
and agrees that the Agents are not and shall not be construed to be fiduciaries of the Company and shall have no duties or liabilities
to the equity holders or the creditors of the Company or any other person by virtue of this Agreement or the retention of the Agents
hereunder, all of which are hereby expressly waived.
SECTION 10. CLOSING.
The obligations of the Agents and the closing of the sale of the Securities hereunder are subject to the accuracy, when made and
on the Closing Date, of the representations and warranties on the part of the Company and its Subsidiaries contained herein, to the accuracy
of the statements of the Company and its Subsidiaries made in any certificates pursuant to the provisions hereof, to the performance
by the Company and its Subsidiaries of their obligations hereunder, and to each of the following additional terms and conditions:
(A) All
corporate proceedings and other legal matters incident to the authorization, form, execution, delivery and validity of each of this Agreement,
the Securities, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory
in all material respects to Maxim, and the Company shall have furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(B) Agents
shall have received from outside counsel to the Company such counsel’s written opinion, addressed to the Agents and dated as of
the Closing Date, in form and substance reasonably satisfactory to Maxim.
(C) Neither
the Company nor any of its Subsidiaries (i) shall have sustained since the date of the latest audited financial statements of the
Company included in the SEC Filings, any loss or interference with its business from fire, explosion, flood, terrorist act or other calamity,
whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set
forth in or contemplated by the SEC Filings, and (ii) since such date there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting
the business, general affairs, management, financial position, stockholders’ equity, results of operations or prospects of the
Company and its subsidiaries, otherwise than as set forth in or contemplated by the SEC Filings, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of Maxim, so material and adverse as to make it impracticable or inadvisable
to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated by the Purchase Agreement.
Members FINRA & SIPC
300 Park Avenue, 16th Floor * New York, NY 10022 * (212) 895-3500 * (800) 724-0761 * fax (212) 895-3783 * www.maximgrp.com
Yield10 Bioscience, Inc.
August [ ], 2023
Page 4
(D) The
common stock of the Company is registered under the Exchange Act.
(E) No
action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect
or potentially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other
nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the
issuance or sale of the Securities or materially and adversely affect or potentially and adversely affect the business or operations
of the Company.
(F) The
Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the Placement.
(G) The
Company shall have entered into Purchase Agreements with each of the Purchasers and such agreements shall be in full force and effect
and shall contain representations and warranties of the Company as agreed between the Company and the Purchasers.
(H) Prior
to the Closing Date, the Company shall have furnished to Maxim such further information, certificates and documents as Maxim may reasonably
request.
SECTION 11. GOVERNING
LAW. This Agreement will be governed by, and construed in accordance with, the laws of the State of New York applicable to agreements
made and to be performed entirely in such State. This Agreement may not be assigned by either party without the prior written consent
of the other party. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors
and permitted assigns. Any right to trial by jury with respect to any dispute arising under this Agreement or any transaction or conduct
in connection herewith is waived. Any dispute arising under this Agreement may be brought into the courts of the State of New York or
into the Federal Court located in New York, New York and, by execution and delivery of this Agreement, the Company hereby accepts for
itself and in respect of its property, generally and unconditionally, the jurisdiction of aforesaid courts. Each party hereto hereby
irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by delivering
a copy thereof via overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. If either party shall commence
an action or proceeding to enforce any provisions of a Transaction Document, then the prevailing party in such action or proceeding shall
be reimbursed by the other party for its attorney’s fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such action or proceeding.
SECTION 12. ENTIRE
AGREEMENT/MISCELLANEOUS. This Agreement (including the attached Indemnification Provisions) embodies the entire agreement and understanding
between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof, except for that
certain agreement entered into by the Company and Maxim on or around July 13, 2023. If any provision of this Agreement is determined
to be invalid or unenforceable in any respect, such determination will not affect such provision in any other respect or any other provision
of this Agreement, which will remain in full force and effect. This Agreement may not be amended or otherwise modified or waived except
by an instrument in writing signed by Maxim, Lake Street and the Company. The representations, warranties, agreements and covenants contained
herein shall survive the closing of the Placement and delivery and/or exercise of the Securities, as applicable. This Agreement may be
executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need
not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or a “.pdf” format
file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed)
with the same force and effect as if such facsimile signature page were an original thereof.
Members FINRA & SIPC
300 Park Avenue, 16th Floor * New York, NY 10022 * (212) 895-3500 * (800) 724-0761 * fax (212) 895-3783 * www.maximgrp.com
Yield10 Bioscience, Inc.
August [ ], 2023
Page 5
SECTION 13. CONFIDENTIALITY.
Each Agent (i) will keep the Confidential Information (as such term is defined below) confidential and will not (except as required
by applicable law or stock exchange requirement, regulation or legal process), without the Company’s prior written consent, disclose
to any person any Confidential Information, and (ii) will not use any Confidential Information other than in connection with its
evaluation of the Transaction. Each Agent further agrees to disclose the Confidential Information only to its Representatives who need
to know the Confidential Information for the purpose of evaluating the Transaction, and who are informed by such Agent of the confidential
nature of the Confidential Information. The term “Confidential Information” shall mean, all confidential, proprietary
and non-public information (whether written, oral or electronic communications) furnished by the Company to the Agents or their Representatives
in connection with their evaluation of the Transaction. The term “Confidential Information” will not, however, include
information which (i) is or becomes publicly available other than as a result of a disclosure by any Agent or its Representatives
in violation of this Agreement, (ii) is or becomes available to any Agent or any of its Representatives on a nonconfidential basis
from a third-party, (iii) is known to any Agent or any of its Representatives prior to disclosure by the Company or any of its Representatives,
(iv) is or has been independently developed by any Agent and/or the Representatives without use of any Confidential Information
furnished to it by the Company, or (v) is required to be disclosed pursuant to applicable legal or regulatory authority. The term
“Representatives” shall mean a party's directors, board committees, officers, employees, financial advisors, attorneys and
accountants. This provision shall be in full force until the earlier of (a) the date that the Confidential Information ceases to
be confidential and (b) two years from the date hereof.
SECTION 14. NOTICES.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and
shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile number specified on the signature pages attached hereto prior to 6:30 p.m. (New York City time)
on a business day, (b) the next business day after the date of transmission, if such notice or communication is delivered via facsimile
at the facsimile number on the signature pages attached hereto on a day that is not a business day or later than 6:30 p.m. (New
York City time) on any business day, (c) the business day following the date of mailing, if sent by U.S. nationally recognized overnight
courier service, or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices
and communications shall be as set forth on the signature pages hereto.
[Signature page follows]
Members FINRA & SIPC
300 Park Avenue, 16th Floor * New York, NY 10022 * (212) 895-3500 * (800) 724-0761 * fax (212) 895-3783 * www.maximgrp.com
Yield10 Bioscience, Inc.
August [ ], 2023
Page 6
We are excited about this equity offering and look forward to working
with you. Please confirm that the foregoing correctly sets forth our agreement by signing and returning the enclosed copy of this Agreement.
|
Very truly yours, |
|
|
|
Maxim
Group LLC |
|
|
|
By: |
|
|
|
Clifford Teller, Co-President |
|
|
|
Address for notice: |
|
300 Park Avenue |
|
16th Floor |
|
New York, NY 10022 |
|
|
|
LAKE
STREET CAPITAL MARKETS, LLC |
|
|
|
By: |
|
|
|
|
Address for notice: |
|
920 2nd Ave S, Ste. 700 |
|
Minneapolis, MN 55402 |
Accepted and Agreed to as of
the date first written above:
YIELD10 BIOSCIENCE, INC.
By: |
|
|
|
Name: Dr. Oliver P. Peoples, Ph.D. |
|
|
Title: President & Chief Executive Officer |
|
Address for notice:
19 Presidential Way
Suite 201
Woburn, MA 01801
Members FINRA & SIPC
300 Park Avenue, 16th Floor * New York, NY 10022 * (212) 895-3500 * (800) 724-0761 * fax (212) 895-3783 * www.maximgrp.com
Yield10 Bioscience, Inc.
August [ ], 2023
Page 7
ADDENDUM A
INDEMNIFICATION PROVISIONS
In connection with the engagement
of Maxim Group LLC (“Maxim”) and Lake Street Capital Markets, LLC (“Lake Street”) by Yield10 Bioscience, Inc.
(the “Company”) pursuant to this Agreement, the Company hereby agrees as follows:
| 1. | To the extent permitted by law, the Company
will indemnify Maxim and Lake Street and each of their affiliates, directors, officers, employees
and controlling persons (within the meaning of Section 15 of the Securities Act of 1933,
as amended, or Section 20 of the Securities Exchange Act of 1934, as amended) against
all losses, claims, damages, expenses and liabilities, as the same are incurred (including
the reasonable fees and expenses of counsel), relating to or arising out of its activities
hereunder or pursuant to the Agreement, except, with regard to Maxim or Lake Street, to the
extent that any losses, claims, damages, expenses or liabilities (or actions in respect thereof)
are found in a final judgment (not subject to appeal) by a court of law to have resulted
primarily and directly from Maxim’s willful misconduct or gross negligence in performing
the services described herein, as the case may be. |
| 2. | Promptly
after receipt by Maxim or Lake Street of notice of any claim or the commencement of any action
or proceeding with respect to which Maxim or Lake Street, as applicable, is entitled to indemnity
hereunder, Maxim or Lake Street, as applicable, will notify the Company in writing of such
claim or of the commencement of such action or proceeding, and the Company will assume the
defense of such action or proceeding and will employ counsel reasonably satisfactory to Maxim
or Lake Street, as applicable, and will pay the fees and expenses of such counsel. Notwithstanding
the preceding sentence, Maxim or Lake Street, as applicable, will be entitled to employ counsel
separate from counsel for the Company and from any other party in such action if counsel
for Maxim or Lake Street, as applicable, reasonably determines that it would be inappropriate
under the applicable rules of professional responsibility for the same counsel to represent
both the Company and Maxim or Lake Street, as applicable. In such event, the reasonable fees
and disbursements of no more than one such separate counsel will be paid by the Company.
The Company will have the exclusive right to settle the claim or proceeding provided that
the Company will not settle any such claim, action or proceeding without the prior written
consent of Maxim or Lake Street, as applicable, which will not be unreasonably withheld,
unless such settlement (x) includes an unconditional release of Maxim or Lake Street,
as applicable, from all liability on claims that are the subject matter of such proceeding
and (y) does not include any statement as to or any admission of fault, culpability
or a failure to act by or on behalf of Maxim or Lake Street, as applicable. |
| 3. | The
Company agrees to notify Maxim or Lake Street, as applicable, promptly of the assertion against
it or any other person of any claim or the commencement of any action or proceeding relating
to a transaction contemplated by the Agreement. |
| 4. | If
for any reason the foregoing indemnity is unavailable to Maxim or Lake Street, as applicable,
or insufficient to hold Maxim or Lake Street, as applicable, harmless, then the Company shall
contribute to the amount paid or payable by Maxim or Lake Street, as applicable, as the case
may be, as a result of such losses, claims, damages or liabilities in such proportion as
is appropriate to reflect not only the relative benefits received by the Company on the one
hand, and Maxim or Lake Street, as applicable, on the other, but also the relative fault
of the Company on the one hand and Maxim or Lake Street, as applicable, on the other that
resulted in such losses, claims, damages or liabilities, as well as any relevant equitable
considerations. The amounts paid or payable by a party in respect of losses, claims, damages
and liabilities referred to above shall be deemed to include any legal or other fees and
expenses incurred in defending any litigation, proceeding or other action or claim. Notwithstanding
the provisions hereof, Maxim’s or Lake Street’s share of the liability hereunder
shall not be in excess of the amount of fees actually received, or to be received, by Maxim
or Lake Street, as applicable, under the Agreement (excluding any amounts received as reimbursement
of expenses incurred by Maxim). |
Members FINRA & SIPC
300 Park Avenue, 16th Floor * New York, NY 10022 * (212) 895-3500 * (800) 724-0761 * fax (212) 895-3783 * www.maximgrp.com
Yield10 Bioscience, Inc.
August [ ], 2023
Page 8
| 5. | These Indemnification Provisions shall remain
in full force and effect whether or not the transaction contemplated by the Agreement is
completed and shall survive the termination of the Agreement, and shall be in addition to
any liability that the Company might otherwise have to any indemnified party under the Agreement
or otherwise. |
|
Very truly yours, |
|
|
|
Maxim
Group, LLC |
|
|
|
By: |
|
|
|
Clifford Teller, Co-President |
|
|
|
Address for notice: |
|
300 Park Avenue |
|
16th Floor |
|
New York, NY 10022 |
|
|
|
LAKE
STREET CAPITAL MARKETS, LLC |
|
|
|
By: |
|
|
|
|
Address for notice: |
|
920 2nd Ave S, Ste. 700 |
|
Minneapolis, MN 55402 |
Accepted and Agreed to as of
the date first written above:
YIELD10 BIOSCIENCE, INC.
By: |
|
|
|
Name: Dr. Oliver P. Peoples, Ph.D. |
|
|
Title: President & Chief Executive Officer |
|
Address for notice:
19 Presidential Way
Suite 201
Woburn, MA 01801
Members FINRA & SIPC
300 Park Avenue, 16th Floor * New York, NY 10022 * (212) 895-3500 * (800) 724-0761 * fax (212) 895-3783 * www.maximgrp.com
Yield10 Bioscience, Inc.
August [ ], 2023
Page 9
ADDENDUM B
Jack W. Schuler
Renate Schuler
Schuler Family Foundation
George Schuler (individually and as trustee of trusts for
the benefit of Jack W. Schuler’s children)
Tino Hans Schuler Trust
Tanya Eva Schuler Trust
Therese Heidi Schuler Trust
Schuler Grandchildren LLC
JS Grandchildren Trust
Schuler Descendants Trust
Marathon Petroleum Corporation or any of its affiliated
entities
Any other entity or person as to which any of
the foregoing is deemed to be the beneficial owner (as defined under applicable securities laws) of securities owned or purchased by
the entities or persons listed on this Addendum B.
Members FINRA & SIPC
300 Park Avenue, 16th Floor * New York, NY 10022 * (212) 895-3500 * (800) 724-0761 * fax (212) 895-3783 * www.maximgrp.com
Exhibit 4.8
FORM OF PRE-FUNDED COMMON STOCK PURCHASE
WARRANT
YIELD10 BIOSCIENCE, INC.
Warrant Shares: [ l ]1 |
Issue Date and Initial Exercise Date: [ l ], 2023 |
THIS PRE-FUNDED COMMON STOCK
PURCHASE WARRANT (the “Warrant”) certifies that, for value received, CEDE & CO. or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date hereof (the “Initial Exercise Date”) and until this Warrant is exercised in full (the “Termination
Date”) but not thereafter, to subscribe for and purchase from YIELD10 BIOSCIENCE, INC., a Delaware corporation (the “Company”),
up to [ l ] shares (as subject to adjustment hereunder, the “Warrant
Shares”) of Common Stock. This Warrant shall initially be issued and maintained in the form of a security held in book-entry
form and the Depository Trust Company or its nominee (“DTC”) shall initially be the sole registered holder of this
Warrant, subject to a Holder's right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant Agency Agreement,
which case this sentence shall not apply. The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise
Price, as defined in Section 2(b).
Section 1. Definitions.
Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities Purchase Agreement
(the “Purchase Agreement”), dated August [ l ], 2023, among the Company and the purchasers signatory
thereto.
Section 2. Exercise.
a) Exercise of
Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or
after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of (i) a duly executed PDF copy
submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”)
and (ii) the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s
check drawn on a United States bank (unless the cashless exercise procedure specified in Section 2(c) below is specified in
the applicable Notice of Exercise). No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other
type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder
shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available
hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation
as soon as reasonably practicable of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of
this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering
the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased.
The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company
shall deliver any objection to any Notice of Exercise within one (1) Business Day of receipt of such notice. Notwithstanding the
foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 4:00 p.m. (New York City time) on the Trading
Date prior to the Initial Exercise Date, which may be delivered at any time after the time of execution of the Purchase Agreement, the
Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise
Date and the Initial Exercise Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate
Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date. The Holder and any
assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase
of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less
than the amount stated on the face hereof.
Notwithstanding the foregoing in this Section 2(a), a holder whose interest in this Warrant is a beneficial interest in certificate(s)
representing this Warrant held in book-entry form through DTC (or another established clearing corporation performing similar functions),
shall effect exercises made pursuant to this Section 2(a) by delivering to DTC (or such other clearing corporation, as applicable) the
appropriate instruction form for exercise, complying with the procedures to effect exercise that are required by DTC (or such other clearing
corporation, as applicable), subject to a Holder's right to elect to receive a Warrant in certificated form pursuant to the terms of the
Warrant Agency Agreement, in which case this sentence shall not apply.
1
NTD: Number of shares equal to $[ ] million of shares issued at the purchase price, minus the number of shares of common
stock issued in connection therewith.
b) Exercise Price.
The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.001 per Warrant Share, was pre-funded to the Company
on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than the nominal exercise price of $0.001
per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise of this Warrant. The Holder shall not
be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance or for any
reason whatsoever, including in the event this Warrant shall not have been exercised prior to the Termination Date. The remaining unpaid
exercise price per share of Common Stock under this Warrant shall be $0.001, subject to adjustment hereunder (the “Exercise Price”).
c) Cashless Exercise.
This Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Holder
shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) | = as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable
Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day
that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to
the opening of, or during and prior to the close of, “regular trading hours” (as defined in Rule 600(b) of Regulation
NMS promulgated under the federal securities laws) on such Trading Day, or (ii) the VWAP on the date of the applicable Notice of
Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to
Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
| (B) | = the Exercise Price of this Warrant, as adjusted hereunder; and |
| (X) | = the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with
the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of
the Securities Act, the holding period of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. The
Company agrees not to take any position contrary to this Section 2(c), except to the extent required by applicable law, rules or
regulations.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New
York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed or quoted for trading on a Trading
Market and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to
its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (c) in all other cases,
the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Company and reasonably
acceptable to the Purchasers of a majority in interest of the Securities then outstanding, the fees and expenses of which shall be paid
by the Company.
Notwithstanding
anything herein to the contrary, on the Termination Date, this Warrant shall be automatically exercised via cashless exercise pursuant
to this Section 2(c).
d) Mechanics
of Exercise.
i. Delivery of
Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent
to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company
through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system
and either (A) the Holder has sold the Warrant Shares pursuant to an effective registration statement registering the resale of the
Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations
or any requirement for the Company to comply with the current public information obligations of Rule 144(c) pursuant to Rule 144
(assuming cashless exercise of the Warrants), and otherwise by physical delivery of a certificate, registered in the Company’s share
register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such
exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading
Days after the delivery to the Company of the Notice of Exercise (and receipt of the aggregate Exercise Price) and (ii) the number
of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (and receipt of
the aggregate Exercise Price) (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise
and receipt of payment of the aggregate Exercise Price (other than in the case of a cashless exercise), the Holder shall be deemed for
all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised,
irrespective of the date of delivery of the Warrant Shares. The Company agrees to maintain a transfer agent that is a participant in the
FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period”
means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect
to the Common Stock as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing, with respect to any
Notice(s) of Exercise delivered on or prior to 12:00 p.m. (New York City time) on the Initial Exercise Date, which may be delivered
at any time after the time of execution of the Purchase Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s) by
4:00 p.m. (New York City time) on the Initial Exercise Date and the Initial Exercise Date shall be the Warrant Share Delivery Date
for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received
by such Warrant Share Delivery Date.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by
the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. No Fractional
Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As
to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election,
either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or
round up to the next whole share.
v. Charges, Taxes
and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however,
that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for
exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as
a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all
Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another
established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vi. Closing of
Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise
as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting
as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)),
would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the
number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number
of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude
the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised
or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject
to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its
Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of
the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that
the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises
of this Warrant that are not in compliance with the Beneficial Ownership Limitation, provided this limitation of liability shall not apply
if the Holder has detrimentally relied on outstanding share information provided by the Company or the Transfer Agent. In addition, a
determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange
Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding
shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s
most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the
Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock
outstanding. Upon the written request of a Holder, the Company shall within one Trading Day confirm orally and in writing to the Holder
the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined
after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates
or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial
Ownership Limitation” shall be 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect
to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase
or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation
in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares
of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply.
Any increase in the Beneficial Ownership Limitation will not be effective until the 61st
day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be
defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary
or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder
of this Warrant.
Section 3. Certain
Adjustments.
a) Stock Dividends
and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution
or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which,
for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding
shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares
of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be
the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator
shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise
of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any adjustment
made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders
entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
b) [Reserved].
c) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues
or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders
of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the
terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the
number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof,
including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common
Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent
that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such
shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance
for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Pro Rata Distributions.
During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets
(or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation,
any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement,
scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant,
then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have
participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without
regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the
date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the participation in such Distribution (provided, however, that, to the extent
that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation,
then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares
of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the
benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
e) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related
transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, directly or indirectly,
effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one
or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the
Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares
for other securities, cash or property and has been accepted by the holders of more than 50% of the outstanding Common Stock or more than
50% of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions
effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which
the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly
or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including,
without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons
whereby such other Person or group acquires more than 50% of the outstanding shares of Common Stock or more than 50% of the voting power
of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent exercise of this
Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately
prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to the Beneficial Ownership Limitation
in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation
or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this
Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such
Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities,
cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in
a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all
of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e) pursuant
to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay)
prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock
(but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in
form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the
term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction,
each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead
to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities,
jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor
Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with
the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company
herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3(e) regardless
of (i) whether the Company has sufficient authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether
a Fundamental Transaction occurs prior to the Initial Exercise Date.
f) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For
purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be
the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g) Notice to
Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice to
Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common
Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company
shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital
stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any
reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any sale
or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into other
securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email
address as it shall appear upon the Warrant Register of the Company, at least three calendar days prior to the applicable record or effective
date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be
entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected
that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to
deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to
be specified in such notice.
Section 4. Transfer
of Warrant.
a) Transferability.
Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof and to the provisions
of Section 4.1 of the Purchase Agreement, this Warrant and all rights hereunder (including, without limitation, any registration
rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated
agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its
agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if
required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable,
and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing
the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary,
the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full,
in which case, the Holder shall surrender this Warrant to the Company on the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b) New Warrants.
If this Warrant is not held in global form through DTC (or any successor depositary), this Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together
with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent
or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the
Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated the issue date and shall be identical with this Warrant
except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant Register.
The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”),
in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the
absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual
notice to the contrary.
Section 5. Miscellaneous.
a) No Rights
as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or
other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i). Without limiting any rights
of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c), in no event shall the Company
be required to net cash settle an exercise of this Warrant.
b) Loss, Theft,
Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to
it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or
granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
d) Authorized
Shares.
The Company covenants
that, following the Initial Exercise Date and during the period the Warrant is outstanding, it will reserve from its authorized and unissued
Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights
under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who
are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company
will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation
of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company
covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon
exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized,
validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue
thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except and to the
extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the
Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately
prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may
be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any
action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price,
the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
e) Jurisdiction.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance
with the provisions of the Purchase Agreement.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this
Warrant or the Purchase Agreement, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results
in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and
expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder
in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices.
Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered in
accordance with the notice provisions of the Purchase Agreement.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
o) Warrant Agency
Agreement. If this Warrant is held in global form through DTC (or any successor depositary), this Warrant is issued subject to the
Warrant Agency Agreement. To the extent any provision of this Warrant conflicts with the express provisions of the Warrant Agency Agreement,
the provisions of this Warrant shall govern and be controlling.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
NOTICE OF EXERCISE
To: YIELD10
BIOSCIENCE, INC.
(1) The undersigned hereby
elects to purchase _________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and
tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take
the form of (check applicable box):
¨
in lawful money of the United States; or
¨
if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in
subsection 2(c), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless
exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant
Shares in the name of the undersigned or in such other name as is specified below:
________________________________________
The Warrant Shares shall be delivered to the following
DWAC Account Number:
________________________________________
________________________________________
________________________________________
[SIGNATURE
OF HOLDER]
Name of Investing Entity: |
|
Signature of Authorized Signatory of Investing Entity: |
|
Name of Authorized Signatory: |
|
Title of Authorized Signatory: |
|
Date: _
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this
form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
Name: |
|
|
(Please Print) |
Address: |
|
Phone Number: |
(Please Print) |
Email Address: |
|
|
|
Dated: _______________ __, ______ |
|
Holder’s Signature:
_____________________________________________ |
|
Holder’s Address: _____________________________________________ |
|
Exhibit 4.9
FORM OF COMMON STOCK PURCHASE WARRANT
YIELD10 BIOSCIENCE, INC.
Warrant Shares:
[ · ]1 |
Issue
Date: [·],
2023 |
THIS COMMON STOCK PURCHASE WARRANT (the “Warrant”)
certifies that, for value received, CEDE & CO. or its assigns (the “Holder”) is entitled, upon the terms
and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the Issue Date (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on the fifth
anniversary of the Initial Exercise Date (the “Termination Date”) but not thereafter, to subscribe for and purchase
from YIELD10 BIOSCIENCE, INC., a Delaware corporation (the “Company”), up to [·]
shares (as subject to adjustment hereunder, the “Warrant Shares”) of Common Stock. This Warrant shall initially be
issued and maintained in the form of a security held in book-entry form and the Depository Trust Company or its nominee (“DTC”)
shall initially be the sole registered holder of this Warrant, subject to a Holder’s right to elect to receive a Warrant in certificated
form pursuant to the terms of the Warrant Agency Agreement, in which case this sentence shall not apply. The purchase price of one share
of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).
Section 1.
Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities
Purchase Agreement (the “Purchase Agreement”), dated August [·],
2023, among the Company and the purchasers signatory thereto.
Section 2.
Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of (i) a duly executed PDF copy
submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”)
and (ii) the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or
cashier’s check drawn on a United States bank (unless the cashless exercise procedure specified in Section 2(c) below
is specified in the applicable Notice of Exercise). No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee
(or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary,
the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant
Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the
Company for cancellation as soon as reasonably practicable of the date on which the final Notice of Exercise is delivered to the Company.
Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall
have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number
of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the
date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Business Day of receipt
of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions
of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase
hereunder at any given time may be less than the amount stated on the face hereof.
Notwithstanding
the foregoing in this Section 2(a), a holder whose interest in this Warrant is a beneficial interest in certificate(s) representing
this Warrant held in book-entry form through DTC (or another established clearing corporation performing similar functions), shall effect
exercises made pursuant to this Section 2(a) by delivering to DTC (or such other clearing corporation, as applicable) the appropriate
instruction form for exercise, complying with the procedures to effect exercise that are required by DTC (or such other clearing corporation,
as applicable), subject to a Holder’s right to elect to receive a Warrant in certificated form pursuant to the terms of the Warrant
Agency Agreement, in which case this sentence shall not apply.
1
NTD: 100% warrant coverage.
b) Exercise
Price. The exercise price per share of Common Stock under this Warrant shall be $[ ], subject to adjustment hereunder (the “Exercise
Price”).
c) Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained
therein is not available for, the resale of the Warrant Shares by the Holder, then this Warrant may also be exercised, in whole or in
part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant
Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) | = |
as applicable: (i) the
VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise
if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof
on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof
on a Trading Day prior to the opening of, or during and prior to the close of, “regular
trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under
the federal securities laws) on such Trading Day, or (ii) the VWAP on the date of the
applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and
such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof
after the close of “regular trading hours” on such Trading Day; |
| (B) | = |
the Exercise Price of this
Warrant, as adjusted hereunder; and |
| (X) | = |
the number of Warrant Shares
that would be issuable upon exercise of this Warrant in accordance with the terms of this
Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of
the Securities Act, the holding period of the Warrant Shares being issued may be tacked on to the holding period of this Warrant. The
Company agrees not to take any position contrary to this Section 2(c), except to the extent required by applicable law, rules or
regulations.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m. (New
York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed or quoted for trading on a Trading
Market and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to
its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (c) in all other cases,
the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Company and
reasonably acceptable to the Purchasers of a majority in interest of the Securities then outstanding, the fees and expenses of which
shall be paid by the Company.
d) Mechanics
of Exercise.
i. Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust
Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such
system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of
the Warrant Shares by Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of
a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant
Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by
the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise (and
receipt of the aggregate Exercise Price) and (ii) the number of Trading Days comprising the Standard Settlement Period after the
delivery to the Company of the Notice of Exercise (and receipt of the aggregate Exercise Price) (such date, the “Warrant Share
Delivery Date”). Upon delivery of the Notice of Exercise and receipt of payment of the aggregate Exercise Price (other than
in the case of a cashless exercise), the Holder shall be deemed for all corporate purposes to have become the holder of record of the
Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares. The
Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and
exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number
of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery
of the Notice of Exercise.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other
respects be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by
the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. No Fractional
Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant.
As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its
election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise
Price or round up to the next whole share.
v. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other
incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and
such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company
may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vi. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to
exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such
issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates,
and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons,
“Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined
below). For the avoidance of doubt, the Beneficial Ownership Limitation shall not apply to Jack. W. Schuler or any of his
Affiliates. For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its
Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon exercise of this Warrant with
respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable
upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its
Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other
securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion
or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution
Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be
calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with
Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in
accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of
whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and
Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the
submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in
relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this
Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to
verify or confirm the accuracy of such determination and shall have no liability for exercises of this Warrant that are not in
compliance with the Beneficial Ownership Limitation, provided this limitation of liability shall not apply if the Holder has
detrimentally relied on outstanding share information provided by the Company or the Transfer Agent. In addition, a determination as
to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the
rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the number of outstanding
shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the
Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public
announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number
of shares of Common Stock outstanding. Upon the written request of a Holder, the Company shall within one Trading Day confirm orally
and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of
Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this
Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of
Common Stock was reported. The “Beneficial Ownership Limitation” shall be 9.99% of the number of shares of the
Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this
Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this
Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 19.99% of the number of shares of the
Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this Warrant
held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial
Ownership Limitation will not be effective until the 61st day after such
notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than
in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be
defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements
necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a
successor holder of this Warrant.
Section 3.
Certain Adjustments.
a) Stock Dividends
and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution
or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock
(which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding
shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares
of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall
be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the
denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable
upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged.
Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination
of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in
the case of a subdivision, combination or re-classification.
b) Reserved.
c) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues
or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders
of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon
the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held
the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for
the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to
the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership
of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held
in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
d) Pro Rata
Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete
exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership
Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as
of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided,
however, that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder
exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent
(or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such
Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result
in the Holder exceeding the Beneficial Ownership Limitation).
e)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one
or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or
any Subsidiary, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all
or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender
offer or exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted
to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of more than 50%
of the outstanding Common Stock or more than 50% of the voting power of the common equity of the Company, (iv) the Company, directly
or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock
or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities,
cash or property, or (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase
agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme
of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than 50% of the outstanding
shares of Common Stock or more than 50% of the voting power of the common equity of the Company (each a “Fundamental Transaction”),
then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have
been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without
regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor
or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate
Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock
for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on
the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted
to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock
in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable
manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given
any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same
choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding
anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at
the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction
(or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder
by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of
this Warrant on the date of the consummation of such Fundamental Transaction; provided, however, that, if the Fundamental Transaction
is not within the Company's control, including not approved by the Company's Board of Directors, the Holder shall only be entitled to
receive from the Company or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes
Value (as defined below) of the unexercised portion of this Warrant, that is being offered and paid to the holders of Common Stock of
the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination
thereof, or whether the holders of Common Stock are given the choice to receive from among alternative forms of consideration in connection
with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company are not offered
or paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received common stock
of the Successor Entity (which Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction. “Black
Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting
(A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public
announcement of the applicable contemplated Fundamental Transaction and the Termination Date, (B) an expected volatility equal to
the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization
factor) as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the
underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in
cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest
VWAP during the period beginning on the Trading Day immediately preceding the public announcement of the applicable contemplated Fundamental
Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s
request pursuant to this Section 3(e) and (D) a remaining option time equal to the time between the date of the public
announcement of the applicable contemplated Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The
payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration) within
the later of (i) five Business Days of the Holder’s election and (ii) the date of consummation of the Fundamental Transaction.
The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor
Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents
in accordance with the provisions of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory
to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option
of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument
substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock
of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this
Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise
price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the shares
of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital
stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation
of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any
such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such
Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall
refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named
as the Company herein.
f) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For
purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be
the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g) Notice to
Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice to
Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common
Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company
shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital
stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any
reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party, any sale
or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted into other
securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding
up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its last email
address as it shall appear upon the Warrant Register of the Company, at least three calendar days prior to the applicable record or effective
date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to
be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected
that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to
deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to
be specified in such notice.
h) Voluntary
Adjustment By Company. Subject to the rules and regulations of the Trading Market on which the Common Stock is then listed,
the Company may at any time during the term of this Warrant reduce the then current Exercise Price to any amount and for any period of
time deemed appropriate by the board of directors of the Company.
Section 4. Transfer
of Warrant.
a) Transferability.
Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof, this Warrant
and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender
of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially
in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable
upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant
or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant
to the Company on the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant,
if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new
Warrant issued.
b) New Warrants.
If this Warrant is not held in global form through DTC (or any successor depositary), this Warrant may be divided or combined with other
Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations
in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a),
as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants
in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or
exchanges shall be dated the issue date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant
thereto.
c) Warrant Register.
The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”),
in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the
absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual
notice to the contrary.
Section 5.
Miscellaneous.
a) No Rights
as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or
other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i). Without limiting any
rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c), in no event shall the
Company be required to net cash settle an exercise of this Warrant.
b) Loss, Theft,
Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or
granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
d) Authorized
Shares.
The Company covenants
that, following the Initial Exercise Date and during the period the Warrant is outstanding, it will reserve from its authorized and unissued
Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights
under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who
are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company
will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without
violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed.
The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant
will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be
duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect
of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except and to the
extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or
any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the
Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately
prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially
reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof,
as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any
action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price,
the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
e) Jurisdiction.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance
with the provisions of the Purchase Agreement.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of
this Warrant or the Purchase Agreement, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which
results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs
and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the
Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices.
Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered
in accordance with the notice provisions of the Purchase Agreement.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this
Warrant.
o) Warrant Agency
Agreement. If this Warrant is held in global form through DTC (or any successor depositary), this Warrant is issued subject to the Warrant
Agency Agreement. To the extent any provision of this Warrant conflicts with the express provisions of the Warrant Agency Agreement,
the provisions of this Warrant shall govern and be controlling.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
NOTICE OF EXERCISE
To:
YIELD10 BIOSCIENCE, INC.
(1) The undersigned hereby
elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full),
and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take
the form of (check applicable box):
¨ in
lawful money of the United States; or
¨ if
permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c),
to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3) Please issue said
Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares shall be delivered to the
following DWAC Account Number:
_______________________________
_______________________________
_______________________________
(4) Accredited Investor.
The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE
OF HOLDER]
Name of Investing Entity: ____________________________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _____________________________________________________________________
Name of Authorized Signatory: _______________________________________________________________________________________
Title of Authorized Signatory: ________________________________________________________________________________________
Date: _
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute
this form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
Name: |
______________________________________ |
|
(Please Print) |
Address: |
______________________________________ |
Phone Number: |
(Please Print) |
Email Address: |
______________________________________ |
|
______________________________________ |
|
|
Dated: _______________
__, ______ |
|
Holder’s
Signature:_________________________ |
|
Holder’s
Address: _________________________ |
|
Exhibit 4.10
YIELD10 BIOSCIENCE, INC.
and
EQUINITI TRUST COMPANY, LLC, as
Warrant Agent
Warrant Agency Agreement
Dated as of August __, 2023
WARRANT AGENCY AGREEMENT
WARRANT AGENCY AGREEMENT,
dated as of August ___, 2023 (“Agreement”), between Yield10 Bioscience, Inc., a corporation organized under
the laws of the State of Delaware (the “Company”), and Equiniti Trust Company, LLC (the “Warrant Agent”).
W I T N E S S E T H
WHEREAS, pursuant to a registered
offering by the Company of [___ Units (the “Offering”), with each Unit consisting of one share of the Company’s
common stock, par value $0.01 per share (the “Common Stock”) (or one pre-funded warrant (the “Pre-Funded Warrants”)
and one warrant (the “Warrants”) to purchase one share of Common Stock (the “Warrant Shares”) at
a price of $[___ per share (or [__]% of the price of each share of Common Stock sold in the Offering); and
WHEREAS, upon the terms and
subject to the conditions hereinafter set forth and pursuant to an effective registration statement on Form S-1, as amended (File
No. 333-273240) (the “Registration Statement”), and the terms and conditions of the Warrant Certificate, the Company
wishes to issue the Warrants in book entry form entitling the respective holders of the Warrants (the “Holders,” which
term shall include a Holder’s transferees, successors and assigns and “Holder” shall include, if the Warrants are held
in “street name,” a Participant (as defined below) or a designee appointed by such Participant); and
WHEREAS, the shares of Common
Stock (or Pre-Funded Warrants) and Warrants to be issued in connection with the Offering shall be immediately separable and will be issued
separately, but will be purchased together in the Offering; and
WHEREAS, the Company wishes
the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing so to act, in connection with the issuance, registration,
transfer, exchange, exercise and replacement of the Warrants and, in the Warrant Agent’s capacity as the Company’s transfer
agent, the delivery of the Warrant Shares (as defined below).
NOW, THEREFORE, in consideration
of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain
Definitions. For purposes of this Agreement, all capitalized terms not herein defined shall have the meanings hereby indicated:
(a) “Affiliate”
has the meaning ascribed to it in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(b) “Close of
Business” on any given date means 5:00 p.m., New York City time, on such date; provided, however, that if such
date is not a Business Day it means 5:00 p.m., New York City time, on the next succeeding Business Day.
(c) “Person”
means an individual, corporation, association, partnership, limited liability company, joint venture, trust, unincorporated organization,
government or political subdivision thereof or governmental agency or other entity.
(d) “Warrant
Certificate” means the certificate in substantially the form attached as Exhibit 1 hereto, representing such number
of Warrant Shares as is indicated therein, provided that any reference to the delivery of a Warrant Certificate in this Agreement shall
include delivery of a Definitive Certificate or a Global Warrant (each as defined below).
All other capitalized terms
used but not otherwise defined herein shall have the meaning ascribed to such terms in the Warrant Certificate (including any defined
terms set forth in the Purchase Agreement (as defined in the Warrant Certificate)).
Section 2. Appointment
of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the terms and conditions
hereof, and the Warrant Agent hereby accepts such appointment.
Section 3. Global
Warrants.
(a) The Warrants shall
be registered securities and shall be evidenced by a global warrant with respect to the Warrants (the “Global Warrants”),
in the form of the Warrant Certificate, which shall be deposited with the Warrant Agent and registered in the name of Cede &
Co., a nominee of The Depository Trust Company (the “Depositary”), or as otherwise directed by the Depositary. Ownership
of beneficial interests in the Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained
by (i) the Depositary or its nominee for each Global Warrant or (ii) institutions that have accounts with the Depositary (such
institution, with respect to a Warrant in its account, a “Participant”).
(b) If the Depositary
subsequently ceases to make its book-entry settlement system available for the Warrants, the Company may instruct the Warrant Agent regarding
other arrangements for book-entry settlement. In the event that the Warrants are not eligible for, or it is no longer necessary to have
the Warrants available in, book-entry form, the Warrant Agent shall provide written instructions to the Depositary to deliver to the Warrant
Agent for cancellation each Global Warrant, and the Company shall instruct the Warrant Agent to deliver to each Holder a Warrant Certificate.
(c) A Holder has the
right to elect at any time or from time to time a Warrant Exchange (as defined below) pursuant to a Warrant Certificate Request Notice
(as defined below). Upon written notice by a Holder to the Company and the Warrant Agent for the exchange of some or all of such Holder’s
Global Warrants for a separate certificate in the form attached hereto as Exhibit 1 (such separate certificate, a “Definitive
Certificate”) evidencing the same number of Warrants, which request shall be in the form attached hereto as Exhibit 2
(a “Warrant Certificate Request Notice” and the date of delivery of such Warrant Certificate Request Notice by the
Holder, the “Warrant Certificate Request Notice Date” and the surrender by the Holder to the Warrant Agent of a number
of Global Warrants for the same number of Warrants evidenced by a Warrant Certificate, a “Warrant Exchange”), the Company
and the Warrant Agent shall promptly effect the Warrant Exchange and the Company and the Warrant Agent shall promptly issue and deliver
to the Holder a Definitive Certificate for such number of Warrants in the name set forth in the Warrant Certificate Request Notice. Such
Definitive Certificate shall be dated the original issue date of the Warrants, shall be executed by facsimile by an authorized signatory
of the Company, shall be in the form attached hereto as Exhibit 1, and shall be reasonably acceptable in all respects to such
Holder. In connection with a Warrant Exchange, the Company agrees to deliver the Definitive Certificate to the Holder within ten (10) Business
Days of the Warrant Certificate Request Notice pursuant to the delivery instructions in the Warrant Certificate Request Notice (“Warrant
Certificate Delivery Date”). If the Company and the Warrant Agent fail for any reason to deliver to the Holder the Definitive
Certificate subject to the Warrant Certificate Request Notice by the Warrant Certificate Delivery Date, the Company shall pay to the Holder,
in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares evidenced by such Definitive Certificate (based
on the VWAP (as defined in the Warrants) of the Common Stock on the Warrant Certificate Request Notice Date), $10 per Business Day for
each Business Day after such Warrant Certificate Delivery Date until such Definitive Certificate is delivered or, prior to delivery of
such Warrant Certificate, the Holder rescinds such Warrant Exchange. The Company covenants and agrees that, upon the date of delivery
of the Warrant Certificate Request Notice, the Holder shall be deemed to be the holder of the Definitive Certificate and, notwithstanding
anything to the contrary set forth herein, the Definitive Certificate shall be deemed for all purposes to contain all of the terms and
conditions of the Warrants evidenced by such Warrant Certificate and the terms of this Agreement, other than Sections 3(c), 3(d) and
9 herein, shall not apply to the Warrants evidenced by the Definitive Certificate. Notwithstanding anything herein to the contrary, the
Warrant Agent shall act as warrant agent with respect to any Definitive Certificate requested and issued pursuant to this section. Notwithstanding
anything to the contrary contained in this Agreement, in the event of inconsistency between any provision in this Agreement and any provision
in a Definitive Certificate, as it may from time to time be amended, the terms of such Definitive Certificate shall control.
(d) A Holder of a Definitive
Certificate (pursuant to a Warrant Exchange or otherwise) has the right to elect at any time or from time to time a Global Warrants Exchange
(as defined below) pursuant to a Global Warrants Request Notice (as defined below). Upon written notice by a Holder to the Company and
the Warrant Agent for the exchange of some or all of such Holder’s Warrants evidenced by a Definitive Certificate for a beneficial
interest in Global Warrants held in book-entry form through the Depositary evidencing the same number of Warrants, which request shall
be in the form attached hereto as Exhibit 3 (a “Global Warrants Request Notice” and the date of delivery
of such Global Warrants Request Notice by the Holder, the “Global Warrants Request Notice Date” and the surrender upon
delivery by the Holder of the Warrants evidenced by Definitive Certificates for the same number of Warrants evidenced by a beneficial
interest in Global Warrants held in book-entry form through the Depositary, a “Global Warrants Exchange”), the Warrant
Agent shall promptly effect the Global Warrants Exchange and shall promptly issue and deliver to the Holder Global Warrants for such number
of Warrants in the Global Warrants Request Notice, which beneficial interest in such Global Warrants shall be delivered by the Depositary’s
Deposit or Withdrawal at Custodian system to the Holder pursuant to the instructions in the Global Warrants Request Notice. In connection
with a Global Warrants Exchange, the Warrant shall deliver the beneficial interest in such Global Warrants to the Holder within ten (10) Business
Days of the Global Warrants Request Notice pursuant to the delivery instructions in the Global Warrant Request Notice (“Global
Warrants Delivery Date”). If the Company fails for any reason to deliver to the Holder Global Warrants subject to the Global
Warrants Request Notice by the Global Warrants Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and
not as a penalty, for each $1,000 of Warrant Shares evidenced by such Global Warrants (based on the VWAP (as defined in the Warrants)
of the Common Stock on the Global Warrants Request Notice Date), $10 per Business Day for each Business Day after such Global Warrants
Delivery Date until such Global Warrants are delivered or, prior to delivery of such Global Warrants, the Holder rescinds such Global
Warrants Exchange. The Company covenants and agrees that, upon the date of delivery of the Global Warrants Request Notice, the Holder
shall be deemed to be the beneficial holder of such Global Warrants.
Section 4. Form of
Warrant Certificates. The Warrant Certificate, together with the form of election to purchase Common Stock (“Notice of Exercise”)
and the form of assignment to be printed on the reverse thereof, shall be in the form of Exhibit 1 hereto.
Section 5. Countersignature
and Registration. The Global Warrants shall be executed on behalf of the Company by its Chief Executive Officer, Chief Operating Officer
or President, by facsimile signature, and have affixed thereto the Company’s seal or a facsimile thereof (in each case only if the
Company has a seal) which shall be attested by the Secretary or an Assistant Secretary of the Company, by facsimile signature. The Global
Warrants shall be countersigned by the Warrant Agent by facsimile signature and shall not be valid for any purpose unless so countersigned.
In case any officer of the Company who shall have signed any of the Global Warrants shall cease to be such officer of the Company before
countersignature by the Warrant Agent and issuance and delivery by the Company, such Global Warrant, nevertheless, may be countersigned
by the Warrant Agent, issued and delivered with the same force and effect as though the person who signed such Global Warrants had not
ceased to be such officer of the Company; and any Global Warrant may be signed on behalf of the Company by any person who, at the actual
date of the execution of such Global Warrant, shall be a proper officer of the Company to sign such Global Warrants, although at the date
of the execution of this Warrant Agreement any such person was not such an officer.
The Warrant Agent will keep
or cause to be kept, at one of its offices, or at the office of one of its agents, books for registration and transfer of the Global Warrants
issued hereunder. Such books shall show the names and addresses of the respective Holders of the Global Warrant, the number of warrants
evidenced on the face of each of such Global Warrant and the date of each of such Global Warrant. The Warrant Agent will create a special
account for the issuance of Global Warrants. The Warrant Agent will keep or cause to be kept at one of its offices, books for the registration
and transfer of any Definitive Certificates issued hereunder. Such Warrant Agent books shall show the names and addresses of the respective
Holders of the Definitive Certificates, the number of warrants evidenced on the face of each such Definitive Certificate and the date
of each such Definitive Certificate.
Section 6. Transfer,
Split Up, Combination and Exchange of Warrant Certificates; Mutilated, Destroyed, Lost or Stolen Warrant Certificates. With respect
to the Global Warrants, subject to the provisions of the Warrant Certificate and the last sentence of this first paragraph of Section 6
and subject to applicable law, rules or regulations, or any “stop transfer” instructions the Company may give to the
Warrant Agent, at any time after the closing date of the Offering, and at or prior to the Close of Business on the Termination Date (as
such term is defined in the Warrant Certificate), any Global Warrant or Global Warrants may be transferred, split up, combined or exchanged
for another Global Warrant or Global Warrants, entitling the Holder to purchase a like number of shares of Common Stock as the Global
Warrant or Global Warrants surrendered then entitled such Holder to purchase. Any Holder desiring to transfer, split up, combine or exchange
any Global Warrant shall make such request in writing delivered to the Warrant Agent, and shall surrender the Global Warrant to be transferred,
split up, combined or exchanged at the principal office of the Warrant Agent. Any requested transfer of Warrants, whether in book-entry
form or certificate form, shall be accompanied by reasonable evidence of authority of the party making such request that may be required
by the Warrant Agent. Thereupon the Warrant Agent shall, subject to the last sentence of this first paragraph of Section 6, countersign
and deliver to the Person entitled thereto a Global Warrant or Global Warrants, as the case may be, as so requested. The Company may require
payment from the Holder of a sum sufficient to cover any tax or governmental charge or any bond or other fees required by the Warrant
Agent that may be imposed in connection with any transfer, split up, combination or exchange of Global Warrants. The Company shall compensate
the Warrant Agent per the fee schedule mutually agreed upon by the parties hereto and provided separately on the date hereof.
Upon receipt by the Warrant
Agent of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of a Warrant Certificate, which evidence
shall include an affidavit of loss, or in the case of mutilated certificates, the certificate or portion thereof remaining, and, in case
of loss, theft or destruction, of indemnity in customary form and amount (but, with respect to any Definitive Certificates, shall not
include the posting of any bond by the Holder), and satisfaction of any other reasonable requirements established by Section 8-405
of the Uniform Commercial Code as in effect in the State of Delaware, and reimbursement to the Company and the Warrant Agent of all reasonable
expenses incidental thereto, and upon surrender to the Warrant Agent and cancellation of the Warrant Certificate if mutilated, the Company
will make and deliver a new Warrant Certificate of like tenor to the Warrant Agent for delivery to the Holder in lieu of the Warrant Certificate
so lost, stolen, destroyed or mutilated.
Section 7. Exercise
of Warrants; Exercise Price; Termination Date.
(a) The Warrants shall
be exercisable commencing on the Initial Exercise Date. The Warrants shall cease to be exercisable and shall terminate and become void
as set forth in the Warrant Certificate. Subject to the foregoing and to Section 7(b) below, the Holder of a Warrant may exercise
the Warrant in whole or in part upon surrender of the Warrant Certificate, if required, with the executed Notice of Exercise and payment
of the Exercise Price, which may be made, at the option of the Holder, by wire transfer or by certified or official bank check in United
States dollars, to the Warrant Agent at the principal office of the Warrant Agent or to the office of one of its agents as may be designated
by the Warrant Agent from time to time. In the case of the Holder of a Global Warrant, the Holder shall deliver the executed Notice of
Exercise and the payment of the Exercise Price as described herein. Notwithstanding any other provision in this Agreement, a holder whose
interest in a Global Warrant is a beneficial interest in a Global Warrant held in book-entry form through the Depositary (or another established
clearing corporation performing similar functions), shall effect exercises by delivering to the Depositary (or such other clearing corporation,
as applicable) the appropriate instruction form for exercise, complying with the procedures to effect exercise that are required by the
Depositary (or such other clearing corporation, as applicable). The Company acknowledges that the bank accounts maintained by the Warrant
Agent in connection with the services provided under this Agreement will be in its name and that the Warrant Agent may receive investment
earnings in connection with the investment at Warrant Agent risk and for its benefit of funds held in those accounts from time to time.
Neither the Company nor the Holders will receive interest on any deposits or Exercise Price. No ink-original Notice of Exercise shall
be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. The
Company hereby acknowledges and agrees that, with respect to a holder whose interest in a Global Warrant is a beneficial interest in a
Global Warrant held in book-entry form through the Depositary (or another established clearing corporation performing similar functions),
upon delivery of irrevocable instructions to such holder’s Participant to exercise such warrants, that solely for purposes of Regulation
SHO that such holder shall be deemed to have exercised such warrants.
(b) Upon receipt of a
Notice of Exercise for a Cashless Exercise, provided the requirements for a Cashless Exercise have been met, the Company will promptly
calculate and transmit to the Warrant Agent the number of Warrant Shares issuable in connection with such Cashless Exercise and deliver
a copy of the Notice of Exercise to the Warrant Agent, which shall issue such number of Warrant Shares in connection with such Cashless
Exercise.
(c) Upon the exercise
of the Warrant Certificate pursuant to the terms of Section 2 of the Warrant Certificate, the Warrant Agent shall cause the Warrant
Shares underlying such Warrant Certificate or Global Warrant to be delivered to or upon the order of the Holder of such Warrant Certificate
or Global Warrant, registered in such name or names as may be designated by such Holder, no later than the Warrant Share Delivery Date
(as such term is defined in the Warrant Certificate). If the Company is then a participant in the DWAC system of the Depositary and either
(A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares
by Holder or (B) the Warrant is being exercised via Cashless Exercise, then the certificates for Warrant Shares shall be transmitted
by the Warrant Agent to the Holder by crediting the account of the Holder’s broker with the Depositary through its DWAC system.
For the avoidance of doubt, if the Company becomes obligated to pay any amounts to any Holders pursuant to Section 2(d)(i) or
2(d)(iv) of the Warrant Certificate, such obligation shall be solely that of the Company and not that of the Warrant Agent. Notwithstanding
anything else to the contrary in this Agreement, except in the case of a Cashless Exercise, if any Holder fails to duly deliver payment
to the Warrant Agent of an amount equal to the aggregate Exercise Price of the Warrant Shares to be purchased upon exercise of such Holder’s
Warrant as set forth in Section 7(a) hereof by the Warrant Share Delivery Date, the Warrant Agent will not obligated to deliver
such Warrant Shares (via DWAC or otherwise) until following receipt of such payment, and the applicable Warrant Share Delivery Date shall
be deemed extended by one day for each day (or part thereof) until such payment is delivered to the Warrant Agent.
(d) The Warrant Agent
shall deposit all funds received by it in payment of the Exercise Price for all Warrants in the account of the Company maintained with
the Warrant Agent for such purpose (or to such other account as directed by the Company in writing) and shall advise the Company via email
at the end of each day on which notices of exercise are received or funds for the exercise of any Warrant are received of the amount so
deposited to its account.
Section 8. Cancellation
and Destruction of Warrant Certificates. All Warrant Certificates surrendered for the purpose of exercise, transfer, split up, combination
or exchange shall, if surrendered to the Company or to any of its agents, be delivered to the Warrant Agent for cancellation or in canceled
form, or, if surrendered to the Warrant Agent, shall be canceled by it, and no Warrant Certificate shall be issued in lieu thereof except
as expressly permitted by any of the provisions of this Agreement. The Company shall deliver to the Warrant Agent for cancellation and
retirement, and the Warrant Agent shall so cancel and retire, any other Warrant Certificate purchased or acquired by the Company otherwise
than upon the exercise thereof. The Warrant Agent shall destroy such canceled Warrant Certificates, subject to any applicable law, rule or
regulation requiring the Warrant Agent to retain such canceled certificates or subject to any applicable policies of the Warrant Agent.
Section 9. Certain
Representations; Reservation and Availability of Shares of Common Stock or Cash.
(a) This Agreement has
been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by the Warrant
Agent, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms,
and the Warrants have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Warrant
Agent pursuant hereto and payment therefor by the Holders as provided in the Registration Statement, constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits hereof; in each
case except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to
or affecting creditors’ rights generally or by general equitable principles (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
(b) As of the date hereof,
the authorized capital stock of the Company consists of (i) 60,000,000 shares of Common Stock, of which approximately 6,100,263 shares
of Common Stock are issued and outstanding as of August __, 2023, and [ ] shares of Common Stock are reserved for issuance upon exercise
of the Warrants, and (ii) shares of preferred stock, par value $0.01 per share, of which no shares of Preferred Stock are issued
and outstanding as of August __, 2023. Except as disclosed in the Registration Statement, there are no other outstanding obligations,
warrants, options or other rights to subscribe for or purchase from the Company any class of capital stock of the Company.
(c) The Company covenants
and agrees that it will cause to be reserved and kept available out of its authorized and unissued shares of Common Stock or its authorized
and issued shares of Common Stock held in its treasury, free from preemptive rights, the number of shares of Common Stock that will be
sufficient to permit the exercise in full of all outstanding Warrants.
(d) The Warrant Agent
will create a special account for the issuance of Common Stock upon the exercise of Warrants.
(e) The Company further
covenants and agrees that it will pay when due and payable any and all federal and state transfer taxes and charges which may be payable
in respect of the original issuance or delivery of the Warrant Certificates or certificates evidencing Common Stock upon exercise of the
Warrants. The Company shall not, however, be required to pay any tax or governmental charge which may be payable in respect of any transfer
involved in the transfer or delivery of Warrant Certificates or the issuance or delivery of certificates for Common Stock in a name other
than that of the Holder of the Warrant Certificate evidencing Warrants surrendered for exercise or to issue or deliver any certificate
for shares of Common Stock upon the exercise of any Warrants until any such tax or governmental charge shall have been paid (any such
tax or governmental charge being payable by the Holder of such Warrant Certificate at the time of surrender) or until it has been established
to the Company’s reasonable satisfaction that no such tax or governmental charge is due.
Section 10. Common
Stock Record Date. Each Person in whose name any certificate for shares of Common Stock is issued (or to whose broker’s account
is credited shares of Common Stock through the DWAC system) upon the exercise of Warrants shall for all purposes be deemed to have become
the holder of record for the Common Stock represented thereby on, and such certificate shall be dated, the date on which submission of
the Notice of Exercise was made, provided that the Warrant Certificate evidencing such Warrant is duly surrendered (but only if required
herein) and payment of the Exercise Price (and any applicable transfer taxes) is received on or prior to the Warrant Share Delivery Date;
provided, however, that if the date of submission of the Notice of Exercise is a date upon which the Common Stock transfer
books of the Company are closed, such Person shall be deemed to have become the record holder of such shares on, and such certificate
shall be dated, the next succeeding day on which the Common Stock transfer books of the Company are open.
Section 11. Adjustment
of Exercise Price, Number of Shares of Common Stock or Number of the Company Warrants. The Exercise Price, the number of shares covered
by each Warrant and the number of Warrants outstanding are subject to adjustment from time to time as provided in Section 3 of the
Warrant Certificate. In the event that at any time, as a result of an adjustment made pursuant to Section 3 of the Warrant Certificate,
the Holder of any Warrant thereafter exercised shall become entitled to receive any shares of capital stock of the Company other than
shares of Common Stock, thereafter the number of such other shares so receivable upon exercise of any Warrant shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the shares contained
in Section 3 of the Warrant Certificate and the provisions of Sections 7, 11 and 12 of this Agreement with respect to the shares
of Common Stock shall apply on like terms to any such other shares. All Warrants originally issued by the Company subsequent to any adjustment
made to the Exercise Price pursuant to the Warrant Certificate shall evidence the right to purchase, at the adjusted Exercise Price, the
number of shares of Common Stock purchasable from time to time hereunder upon exercise of the Warrants, all subject to further adjustment
as provided herein.
Section 12. Certification
of Adjusted Exercise Price or Number of Shares of Common Stock. Whenever the Exercise Price or the number of shares of Common Stock
issuable upon the exercise of each Warrant is adjusted as provided in Section 11 or 13, the Company shall (a) promptly prepare
a certificate setting forth the Exercise Price of each Warrant as so adjusted, and a brief statement of the facts accounting for such
adjustment, (b) promptly file with the Warrant Agent and with each transfer agent for the Common Stock a copy of such certificate
and (c) instruct the Warrant Agent to send a brief summary thereof to each Holder of a Warrant Certificate.
Section 13. Fractional
Shares of Common Stock.
(a) The Company shall
not issue fractions of Warrants or distribute Warrant Certificates which evidence fractional Warrants. Whenever any fractional Warrant
would otherwise be required to be issued or distributed, the actual issuance or distribution shall reflect a rounding of such fraction
to the nearest whole Warrant (rounded down).
(b) The Company shall
not issue fractions of shares of Common Stock upon exercise of Warrants or distribute stock certificates which evidence fractional shares
of Common Stock. Whenever any fraction of a share of Common Stock would otherwise be required to be issued or distributed, the actual
issuance or distribution in respect thereof shall be made in accordance with Section 2(d)(v) of the Warrant Certificate.
Section 14. Conditions
of the Warrant Agent’s Obligations. The Warrant Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following to all of which the Company agrees and to all of which the rights hereunder of the Holders from time to
time of the Warrant Certificates shall be subject:
(a) Compensation and
Indemnification. The Company agrees promptly to pay the Warrant Agent the compensation detailed on Exhibit 4 hereto for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent for reasonable out-of-pocket expenses (including reasonable
counsel fees) incurred without gross negligence or willful misconduct finally adjudicated to have been directly caused by the Warrant
Agent in connection with the services rendered hereunder by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent
for, and to hold it harmless against, any loss, liability or expense incurred without gross negligence, or willful misconduct on the part
of the Warrant Agent, finally adjudicated to have been directly caused by Warrant Agent hereunder, including the reasonable costs and
expenses of defending against any claim of such liability. The Warrant Agent shall be under no obligation to institute or defend any action,
suit, or legal proceeding in connection herewith or to take any other action likely to involve the Warrant Agent in expense, unless first
indemnified to the Warrant Agent’s satisfaction. The indemnities provided by this paragraph shall survive the resignation or discharge
of the Warrant Agent or the termination of this Agreement. Anything in this Agreement to the contrary notwithstanding, in no event shall
the Warrant Agent be liable under or in connection with the Agreement for indirect, special, incidental, punitive or consequential losses
or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the Warrant Agent has
been advised of the possibility thereof and regardless of the form of action in which such damages are sought, and the Warrant Agent’s
aggregate liability to the Company, or any of the Company’s representatives or agents, under this Section 14(a) or under
any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed
in any circumstances, one (1) year’s fees received by the Warrant Agent as fees and charges under this Agreement, but not including
reimbursable expenses previously reimbursed to the Warrant Agent by the Company hereunder.
(b) Agent for the
Company. In acting under this Warrant Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely
as agent of the Company and does not assume any obligations or relationship of agency or trust for or with any of the Holders of Warrant
Certificates or beneficial owners of Warrants.
(c) Counsel. The
Warrant Agent may consult with counsel satisfactory to it, which may include counsel for the Company, and the written advice of such counsel
shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with the advice of such counsel.
(d) Documents.
The Warrant Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted by it in reliance upon
any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed
by it to be genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions.
The Warrant Agent, and its officers, directors and employees, may become the owner of, or acquire any interest in, Warrants, with the
same rights that it or they would have if it were not the Warrant Agent hereunder, and, to the extent permitted by applicable law, it
or they may engage or be interested in any financial or other transaction with the Company and may act on, or as depositary, trustee or
agent for, any committee or body of Holders of Warrant Securities or other obligations of the Company as freely as if it were not the
Warrant Agent hereunder. Nothing in this Warrant Agreement shall be deemed to prevent the Warrant Agent from acting as trustee under any
indenture to which the Company is a party.
(f) No Liability for
Interest. Unless otherwise agreed with the Company, the Warrant Agent shall have no liability for interest on any monies at any time
received by it pursuant to any of the provisions of this Agreement or of the Warrant Certificates.
(g) No Liability for
Invalidity. The Warrant Agent shall have no liability with respect to any invalidity of this Agreement or the Warrant Certificates
(except as to the Warrant Agent’s countersignature thereon).
(h) No Responsibility
for Representations. The Warrant Agent shall not be responsible for any of the recitals or representations herein or in the Warrant
Certificate (except as to the Warrant Agent’s countersignature thereon), all of which are made solely by the Company.
(i) No Implied Obligations.
The Warrant Agent shall be obligated to perform only such duties as are herein and in the Warrant Certificates specifically set forth
and no implied duties or obligations shall be read into this Agreement or the Warrant Certificates against the Warrant Agent. The Warrant
Agent shall not be under any obligation to take any action hereunder which may tend to involve it in any expense or liability, the payment
of which within a reasonable time is not, in its reasonable opinion, assured to it. The Warrant Agent shall not be accountable or under
any duty or responsibility for the use by the Company of any of the Warrant Certificates authenticated by the Warrant Agent and delivered
by it to the Company pursuant to this Agreement or for the application by the Company of the proceeds of the Warrant Certificate. The
Warrant Agent shall have no duty or responsibility in case of any default by the Company in the performance of its covenants or agreements
contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from a Holder of a Warrant Certificate
with respect to such default, including, without limiting the generality of the foregoing, any duty or responsibility to initiate or attempt
to initiate any proceedings at law.
Section 15. Purchase
or Consolidation or Change of Name of Warrant Agent. Any corporation into which the Warrant Agent or any successor Warrant Agent may
be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Warrant Agent
or any successor Warrant Agent shall be party, or any corporation succeeding to the corporate trust business of the Warrant Agent or any
successor Warrant Agent, shall be the successor to the Warrant Agent under this Agreement without the execution or filing of any paper
or any further act on the part of any of the parties hereto, provided that such corporation would be eligible for appointment as a successor
Warrant Agent under the provisions of Section 17. In case at the time such successor Warrant Agent shall succeed to the agency created
by this Agreement any of the Warrant Certificates shall have been countersigned but not delivered, any such successor Warrant Agent may
adopt the countersignature of the predecessor Warrant Agent and deliver such Warrant Certificates so countersigned; and in case at that
time any of the Warrant Certificates shall not have been countersigned, any successor Warrant Agent may countersign such Warrant Certificates
either in the name of the predecessor Warrant Agent or in the name of the successor Warrant Agent; and in all such cases such Warrant
Certificates shall have the full force provided in the Warrant Certificates and in this Agreement.
In case at any time the name
of the Warrant Agent shall be changed and at such time any of the Warrant Certificates shall have been countersigned but not delivered,
the Warrant Agent may adopt the countersignature under its prior name and deliver such Warrant Certificates so countersigned; and in case
at that time any of the Warrant Certificates shall not have been countersigned, the Warrant Agent may countersign such Warrant Certificates
either in its prior name or in its changed name; and in all such cases such Warrant Certificates shall have the full force provided in
the Warrant Certificates and in this Agreement.
Section 16. Duties
of Warrant Agent. The Warrant Agent undertakes the duties and obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company, by its acceptance hereof, shall be bound:
(a) The Warrant Agent
may consult with legal counsel reasonably acceptable to the Company (who may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection to the Warrant Agent as to any action taken or omitted by it in good faith
and in accordance with such opinion.
(b) Whenever in the performance
of its duties under this Agreement the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established
by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed by the Chief Executive Officer,
Chief Financial Officer or Vice President of the Company; and such certificate shall be full authentication to the Warrant Agent for any
action taken or suffered in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) Subject to the limitation
set forth in Section 14, the Warrant Agent shall be liable hereunder only for its own gross negligence or willful misconduct, or
for a breach by it of this Agreement.
(d) The Warrant Agent
shall not be liable for or by reason of any of the statements of fact or recitals contained in this Agreement or in the Warrant Certificate
(except its countersignature thereof) by the Company or be required to verify the same, but all such statements and recitals are and shall
be deemed to have been made by the Company only.
(e) The Warrant Agent
shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery hereof (except the due
execution hereof by the Warrant Agent) or in respect of the validity or execution of any Warrant Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any
Warrant Certificate; nor shall it be responsible for the adjustment of the Exercise Price or the making of any change in the number of
shares of Common Stock required under the provisions of Section 11 or 13 or responsible for the manner, method or amount of any such
change or the ascertaining of the existence of facts that would require any such adjustment or change (except with respect to the exercise
of Warrants evidenced by the Warrant Certificates after actual notice of any adjustment of the Exercise Price); nor shall it by any act
hereunder be deemed to make any representation or warranty as to the authorization or reservation of any shares of Common Stock to be
issued pursuant to this Agreement or any Warrant Certificate or as to whether any shares of Common Stock will, when issued, be duly authorized,
validly issued, fully paid and nonassessable.
(f) Each party hereto
agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required by the other party hereto for the carrying out or performing
by any party of the provisions of this Agreement.
(g) The Warrant Agent
is hereby authorized to accept instructions with respect to the performance of its duties hereunder from the Chief Executive Officer,
President, Chief Accounting Officer or Vice President of the Company, and to apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable and shall be indemnified and held harmless for any action taken or suffered to be taken by
it in good faith in accordance with instructions of any such officer, provided Warrant Agent carries out such instructions without gross
negligence or willful misconduct.
(h) The Warrant Agent
and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities
of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money
to the Company or otherwise act as fully and freely as though it were not Warrant Agent under this Agreement. Nothing herein shall preclude
the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
(i) The Warrant Agent
may execute and exercise any of the rights or powers hereby vested in it or perform any duty hereunder either itself or by or through
its attorney or agents, and the Warrant Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any
such attorney or agents or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided reasonable
care was exercised in the selection and continued employment thereof.
Section 17. Change
of Warrant Agent. The Warrant Agent may resign and be discharged from its duties under this Agreement upon 30 days’ notice in
writing sent to the Company and to each transfer agent of the Common Stock, and to the Holders of the Warrant Certificates. The Company
may remove the Warrant Agent or any successor Warrant Agent upon 30 days’ notice in writing, sent to the Warrant Agent or successor
Warrant Agent, as the case may be, and to each transfer agent of the Common Stock, and to the Holders of the Warrant Certificates. If
the Warrant Agent shall resign or be removed or shall otherwise become incapable of acting, the Company shall appoint a successor to the
Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days after such removal or after it has been notified
in writing of such resignation or incapacity by the resigning or incapacitated Warrant Agent or by the Holder of a Warrant Certificate
(who shall, with such notice, submit his Warrant Certificate for inspection by the Company), then the Holder of any Warrant Certificate
may apply to any court of competent jurisdiction for the appointment of a new Warrant Agent, provided that, for purposes of this Agreement,
the Company shall be deemed to be the Warrant Agent until a new warrant agent is appointed. Any successor Warrant Agent, whether appointed
by the Company or by such a court, shall be a corporation organized and doing business under the laws of the United States or of a state
thereof, in good standing, which is authorized under such laws to exercise corporate trust powers and is subject to supervision or examination
by federal or state authority and which has at the time of its appointment as Warrant Agent a combined capital and surplus of at least
$50,000,000. After appointment, the successor Warrant Agent shall be vested with the same powers, rights, duties and responsibilities
as if it had been originally named as Warrant Agent without further act or deed; but the predecessor Warrant Agent shall deliver and transfer
to the successor Warrant Agent any property at the time held by it hereunder, and execute and deliver any further assurance, conveyance,
act or deed necessary for the purpose. Not later than the effective date of any such appointment, the Company shall file notice thereof
in writing with the predecessor Warrant Agent and each transfer agent of the Common Stock, and mail a notice thereof in writing to the
Holders of the Warrant Certificates. However, failure to give any notice provided for in this Section 17, or any defect therein,
shall not affect the legality or validity of the resignation or removal of the Warrant Agent or the appointment of the successor Warrant
Agent, as the case may be.
Section 18. Issuance
of New Warrant Certificates. Notwithstanding any of the provisions of this Agreement or of the Warrants to the contrary, the Company
may, at its option, issue new Warrant Certificates evidencing Warrants in such form as may be approved by its Board of Directors to reflect
any adjustment or change in the Exercise Price per share and the number or kind or class of shares of stock or other securities or property
purchasable under the several Warrant Certificates made in accordance with the provisions of this Agreement.
Section 19. Notices.
Notices or demands authorized by this Agreement to be given or made (i) by the Warrant Agent or by the Holder of any Warrant Certificate
to or on the Company, (ii) subject to the provisions of Section 17, by the Company or by the Holder of any Warrant Certificate
to or on the Warrant Agent or (iii) by the Company or the Warrant Agent to the Holder of any Warrant Certificate shall be deemed
given (a) on the date delivered, if delivered personally, (b) on the first Business Day following the deposit thereof with Federal
Express or another recognized overnight courier, if sent by Federal Express or another recognized overnight courier, (c) on the fourth
Business Day following the mailing thereof with postage prepaid, if mailed by registered or certified mail (return receipt requested),
and (d) the date of transmission, if such notice or communication is delivered via facsimile or email attachment at or prior to 5:30
p.m. (New York City time) on a Business Day and (e) the next Business Day after the date of transmission, if such notice or
communication is delivered via facsimile or email attachment on a day that is not a Business Day or later than 5:30 p.m. (New York
City time) on any Business Day, in each case to the parties at the following addresses (or at such other address for a party as shall
be specified by like notice):
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(a) |
If to the Company, to: |
Dr. Oliver P. Peoples, Ph.D.
19 Presidential Way
Suite 201
Woburn, MA 01801
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(b) |
If to the Warrant Agent, to: |
Equiniti
Trust Company, LLC
6201
15th Avenue
Brooklyn,
NY 11219
For any notice delivered by email to be deemed
given or made, such notice must be followed by notice sent by overnight courier service to be delivered on the next business day following
such email, unless the recipient of such email has acknowledged via return email receipt of such email.
(c) If to the Holder
of any Warrant Certificate to the address of such Holder as shown on the registry books of the Company. Any notice required to be delivered
by the Company to the Holder of any Warrant may be given by the Warrant Agent on behalf of the Company. Notwithstanding any other provision
of this Agreement, where this Agreement provides for notice of any event to a Holder of any Warrant, such notice shall be sufficiently
given if given to the Depositary (or its designee) pursuant to the procedures of the Depositary or its designee.
Section 20. Supplements
and Amendments.
(a) The Company and the
Warrant Agent may from time to time supplement or amend this Agreement without the approval of any Holders of Global Warrants in order
to (i) add to the covenants and agreements of the Company for the benefit of the Holders of the Global Warrants, (ii) to surrender
any rights or power reserved to or conferred upon the Company in this Agreement, (iii) to cure any ambiguity, (iv) to correct
or supplement any provision contained herein which may be defective or inconsistent with any other provisions herein, or (v) to make
any other provisions with regard to matters or questions arising hereunder which the Company and the Warrant Agent may deem necessary
or desirable, provided that such addition, correction or surrender shall not adversely affect the interests of the Holders of the Global
Warrants or Warrant Certificates in any material respect.
(b) In addition to the
foregoing, with the consent of Holders of Warrants entitled, upon exercise thereof, to receive not less than a majority of the shares
of Common Stock issuable thereunder, the Company and the Warrant Agent may modify this Agreement for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Warrant Agreement or modifying in any manner the rights of the
Holders of the Global Warrants; provided, however, that no modification of the terms (including but not limited to the adjustments
described in Section 11) upon which the Warrants are exercisable or the rights of holders of Warrants to receive liquidated damages
or other payments in cash from the Company or reducing the percentage required for consent to modification of this Agreement may be made
without the consent of the Holder of each outstanding Warrant Certificate affected thereby; provided further, however, that
no amendment hereunder shall affect any terms of any Warrant Certificate issued in a Warrant Exchange. As a condition precedent to the
Warrant Agent’s execution of any amendment, the Company shall deliver to the Warrant Agent a certificate from a duly authorized
officer of the Company that states that the proposed amendment complies with the terms of this Section 20.
Section 21. Successors.
All covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit
of their respective successors and assigns hereunder.
Section 22. Benefits
of this Agreement. Nothing in this Agreement shall be construed to give any Person other than the Company, the Holders of Warrant
Certificates and the Warrant Agent any legal or equitable right, remedy or claim under this Agreement. This Agreement shall be for the
sole and exclusive benefit of the Company, the Warrant Agent and the Holders of the Warrant Certificates. Notwithstanding anything to
the contrary contained herein, to the extent any provision of a Warrant Certificate conflicts with any provision of this Agreement, the
provisions of the Warrant Certificate shall govern and be controlling.
Section 23. Governing
Law. This Agreement and each Warrant Certificate and Global Warrant issued hereunder shall be governed by, and construed in accordance
with, the laws of the State of New York without giving effect to the conflicts of law principles thereof.
Section 24. Counterparts.
This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same instrument.
Section 25. Captions.
The captions of the sections of this Agreement have been inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Section 26. Information.
The Company agrees to promptly provide to the Holders of the Warrants any information it provides to the holders of the Common Stock,
except to the extent any such information is publicly available on the EDGAR system (or any successor thereof) of the Securities and Exchange
Commission.
[Signature page follows]
IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed as of the day and year first above written.
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YIELD10 BIOSCIENCE, INC.
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By: |
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Name: |
Oliver Peoples |
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Title: |
Chief Executive Officer |
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EQUINITI TRUST COMPANY, LLC
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By: |
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Name: |
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Title: |
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Exhibit 1
Form of Warrant Certificate
Exhibit 2
Form of Warrant Certificate Request Notice
WARRANT CERTIFICATE REQUEST NOTICE
To: EQUINITI TRUST COMPANY, LLC, as Warrant Agent
for YIELD10 BIOSCIENCE, INC. (the “Company”)
The undersigned Holder of Common Stock Purchase
Warrants (“Warrants”) in the form of Global Warrants issued by the Company hereby elects to receive a Warrant Certificate
evidencing the Warrants held by the Holder as specified below:
1. |
Name of Holder of Warrants in form of Global Warrants: _____________________________ |
2. |
Name of Holder in Warrant Certificate (if different from name of Holder of Warrants in form of Global Warrants): _____________________________ |
3. |
Number of Warrants in name of Holder in form of Global Warrants: ___________ |
4. |
Number of Warrants for which Warrant Certificate shall be issued: ___________ |
5. |
Number of Warrants in name of Holder in form of Global Warrants after issuance of Warrant Certificate, if any: ___________ |
6. |
Warrant Certificate shall be delivered to the following address: |
The undersigned hereby acknowledges and agrees
that, in connection with this Warrant Exchange and the issuance of the Warrant Certificate, the Holder is deemed to have surrendered the
number of Warrants in form of Global Warrants in the name of the Holder equal to the number of Warrants evidenced by the Warrant Certificate.
[SIGNATURE
OF HOLDER]
Name of Investing Entity: |
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Signature of Authorized Signatory of Investing Entity: |
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Name of Authorized Signatory: |
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Title of Authorized Signatory: |
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Date: |
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Exhibit 3
Form of Global Warrant Request Notice
GLOBAL WARRANT REQUEST NOTICE
To: EQUINITI TRUST COMPANY, LLC, as Warrant Agent
for YIELD10 BIOSCIENCE, INC. (the “Company”)
The undersigned Holder of Common Stock Purchase
Warrants (“Warrants”) in the form of Warrants Certificates issued by the Company hereby elects to receive a Global
Warrant evidencing the Warrants held by the Holder as specified below:
1. |
Name of Holder of Warrants in form of Warrant Certificates: _____________________________ |
2. |
Name of Holder in Global Warrant (if different from name of Holder of Warrants in form of Warrant Certificates): _____________________________ |
3. |
Number of Warrants in name of Holder in form of Warrant Certificates: ___________ |
4. |
Number of Warrants for which Global Warrant shall be issued: ___________ |
5. |
Number of Warrants in name of Holder in form of Warrant Certificates after issuance of Global Warrant, if any: ___________ |
6. |
Global Warrant shall be delivered to the following address: |
The undersigned hereby acknowledges and agrees
that, in connection with this Global Warrant Exchange and the issuance of the Global Warrant, the Holder is deemed to have surrendered
the number of Warrants in form of Warrant Certificates in the name of the Holder equal to the number of Warrants evidenced by the Global
Warrant.
[SIGNATURE
OF HOLDER]
Name of Investing Entity: |
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Signature of Authorized Signatory of Investing Entity: |
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Name of Authorized Signatory: |
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Title of Authorized Signatory: |
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Date: |
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Exhibit 4
Warrant Agent Fee Schedule
Acceptance Fee for Agreement review
Monthly Administration Fee: per Warrant Register
Per Warrant Exercise
Exhibit 5.1
August 2, 2023
Yield10 Bioscience, Inc.
19 Presidential Way
Woburn, Massachusetts 01801
Ladies & Gentlemen:
We
have acted as counsel to Yield10 Bioscience, Inc., a Delaware corporation (the “Company”), in connection with
the registration by the Company under the Securities Act of 1933, as amended (the “Act”), and the issuance and sale
of (i) up to 4,901,960 units, each consisting of (a) one share (the “Shares”) of the Company’s common
stock, par value $0.01 per share (the “Common Stock”) and (b) one warrant (the “Common Warrants”)
to purchase one share of Common Stock, (ii) up to 4,901,960 pre-funded units, each consisting of (a) one pre-funded warrant
(the “Pre-Funded Warrants” and, together with the Common Warrants, the “Warrants”) to purchase one
share of Common Stock and (b) one Common Warrant, and (iii) the 9,803,920 shares of Common Stock issuable upon exercise of the
Warrants (the “Warrant Shares”), in each case pursuant to the registration statement on Form S-1 (File No. 333-273240)
filed with the Securities and Exchange Commission (the “Commission”) on July 14, 2023, (such registration statement,
as amended to the date hereof, is herein referred to as the “Registration Statement”). The Warrants are to be issued
under the form of Warrant Agency Agreement filed as Exhibit 4.10 to the Registration Statement (the “Warrant Agreement”)
to be entered into between the Company and Equiniti Trust Company, LLC, as warrant agent. The Shares, the Pre-Funded Warrants and the
Common Warrants are to be sold pursuant to the form of securities purchase agreement filed as Exhibit 10.21 to the Registration Statement
(the “Securities Purchase Agreement”).
We
have reviewed the (a) Registration Statement, (b) the Warrant Agreement, (c) the Securities Purchase Agreement,
(d) the form of Placement Agency Agreement (the “Placement Agency Agreement”) to be entered into by and among the Company
and Maxim Group LLC and Lake Street Capital Markets, LLC, acting as placement agents, and (e) such other corporate records, certificates
and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion. We have
assumed that all signatures are genuine, that all documents submitted to us as originals are authentic and that all copies of such documents
submitted to us conform to the originals. We have assumed further that, with respect to any document executed or to be executed by any
party other than the Company, that such party has, or will have, duly authorized, executed and delivered the documents to which it is
a party and that each such document is, or will be, the valid and binding obligation of such party, enforceable against it in accordance
with its terms.
We have relied as to certain
matters on information obtained from public officials, officers of the Company, and other sources believed by us to be responsible.
Based
upon the foregoing, and subject to the qualifications set forth herein, we are of the opinion that (i) the Shares have been duly
authorized and, when the Registration Statement has become effective under the Act and the terms of the issuance and sale of the
Shares have been duly approved by all necessary corporate action by the Company, the Shares, when duly issued and sold as contemplated
in the Registration Statement, will be validly issued, fully paid and non-assessable, (ii) the Warrant Shares initially issuable
upon exercise of the Warrants have been duly authorized and, when the Registration Statement has become effective under the Act and the
Warrant Shares have been duly reserved for issuance and the terms of the issuance and sale of the Warrant Shares have been duly approved
by all necessary corporate action by the Company, the Warrant Shares, when issued upon such exercise in accordance with the terms of the
Warrants, will be validly issued, fully paid and non-assessable, and (iii) when the Registration Statement has become effective under
the Act and the form, terms, execution and delivery of the Warrants have been duly authorized by all necessary corporate action by the
Company and the Warrants have been duly executed and delivered in accordance with the terms of the Warrant Agreement and have been duly
issued and sold as contemplated in the Registration Statement, the Warrants will constitute the valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
The foregoing opinion is
subject to the following qualifications:
We express no opinion as
to: (i) waivers of defenses, subrogation and related rights, rights to trial by jury, rights to object to venue, or other rights
or benefits bestowed by operation of law; (ii) releases or waivers of unmatured claims or rights; (iii) indemnification, contribution,
exculpation, or arbitration provisions, or provisions for the non-survival of representations, to the extent they purport to indemnify
any party against, or release or limit any party’s liability for, its own breach or failure to comply with statutory obligations,
or to the extent such provisions are contrary to public policy; or (iv) provisions for liquidated damages and penalties, penalty
interest and interest on interest.
We
are members of the bar of Massachusetts. We do not express any opinion herein on any laws other than the Delaware General Corporation
Law and applicable provisions of the Delaware Constitution and reported judicial decisions interpreting such laws.
We hereby consent to the
filing of this opinion as Exhibit 5.1 to the Registration Statement. We also hereby consent to the reference to our firm under the
heading “Legal Matters” in the prospectus constituting part of the Registration Statement. In giving such consent, we do not
thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
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Very truly yours,
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/s/ Covington & Burling LLP |
Exhibit 10.21
SECURITIES
PURCHASE AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is dated as of August [ ], 2023 between Yield10 Bioscience, Inc., a Delaware corporation
(the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors and
assigns, a “Purchaser” and collectively the “Purchasers”).
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act (as defined below),
the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company,
securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. In
addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set
forth in this Section 1.1:
“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.5.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the second (2nd)
Trading Day following the date hereof.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.01 per share, and any other class of securities into which such securities
may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Disclosure
Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City
time) and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately
following the date hereof, unless otherwise instructed as to an earlier time by the Placement Agents, and (ii) if this Agreement is
signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New
York City time) on the date hereof, unless otherwise instructed as to an earlier time by the Placement Agents.
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers, consultants or directors
of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board
of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered
to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder, and/or other securities
exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided
that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the
exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations), and
(c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of
the Company, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through
its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide
to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is
issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities. For
the avoidance of doubt, issuances of securities to an affiliate of Marathon Petroleum Corporation, to Mitsubishi Corporation or ENEOS
Holdings, Inc. or any of their respective affiliated entities, shall be an Exempt Issuance.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(aa).
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up
Agreement” means the Lock-Up Agreement, dated as of the date hereof, by and among the Company and the directors and officers
of the Company, in the form of Exhibit C attached hereto.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Per Share
Purchase Price” equals $[ ], subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations
and other similar transactions of the Common Stock that occur after the date of this Agreement; provided that the purchase price per Pre-Funded
Warrant shall be the Per Share Purchase Price minus $0.001.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Pharmaceutical
Product” shall have the meaning ascribed to such term in Section 3.1(hh).
“Placement
Agents” means Maxim Group LLC and Lake Street Capital Markets, LLC.
“Pre-Funded
Warrant” means, collectively, the Pre-Funded Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance
with Section 2.2(a) hereof, which Pre-Funded Warrants shall be exercisable immediately and shall expire when exercised in full,
in the form of Exhibit B attached hereto.
“Pre-Funded
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Prospectus”
means the final prospectus filed for the Registration Statement.
“Prospectus
Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is filed
with the Commission and delivered by the Company to each Purchaser at the Closing.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration
Statement” means the effective registration statement with Commission File No. 333-273240 which registers the sale of the
Securities to the Purchasers.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means the Shares, the Pre-Funded Warrants, the Pre-Funded Warrant Shares, the Warrants and the Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not
be deemed to include locating and/or borrowing shares of Common Stock).
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for Shares and Warrants purchased hereunder as specified
below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,”
in United States dollars and in immediately available funds.
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a), and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange, the Pink Open Market, OTCQB or the OTCQX (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Pre-Funded Warrants, the Warrants, all exhibits and schedules thereto and hereto and any
other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means American Stock Transfer & Trust Company, LLC, the current transfer agent of the Company and any successor
transfer agent of the Company.
“Warrants”
means the Common Stock Purchase Warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof,
which Warrants shall have terms of exercise equal to five years following the Initial Exercise Date (as defined therein), in the form
of Exhibit A attached hereto.
“Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Warrants.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing. On the
Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery
of this Agreement by the parties hereto, the Company agrees to sell, and each Purchaser, severally and not jointly, agrees to purchase,
(i) such number of Shares, (ii) a Pre-Funded Warrant to purchase such number of shares of Common Stock, and (iii) a Warrant
to purchase such number of shares of Common Stock, in each case, as set forth on such Purchaser’s signature page hereto, for
an aggregate total purchase price equal to the Subscription Amount set forth on such Purchaser’s signature page hereto. Each
Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available
for “Delivery Versus Payment” settlement with the Company or its designee. The Company shall deliver to each Purchaser its
respective Shares, Pre-Funded Warrant, and Warrant as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall
deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set
forth in Sections 2.2 and 2.3, the Closing shall take place remotely by electronic transfer of the Closing documentation. Unless otherwise
directed by the Placement Agents, settlement of the Shares shall occur via “Delivery Versus Payment” (“DVP”)
(i.e., on the Closing Date, the Company shall issue the Shares registered in the Purchasers’ names and addresses and released by
the Transfer Agent directly to the account(s) at the Placement Agents identified by each Purchaser; upon receipt of such Shares, the
Placement Agents shall promptly electronically deliver such Shares to the applicable Purchaser, and payment therefor shall be made by the
Placement Agents (or their respective clearing firms) by wire transfer to the Company). Notwithstanding the foregoing, with respect to any Notice(s) of
Exercise (as defined in the Pre-Funded Warrants) delivered on or prior to 12:00 p.m. (New York City time) on the Closing Date, which
may be delivered at any time after the time of execution of the this Agreement, the Company agrees to deliver the Pre-Funded Warrant Shares
subject to such notice(s) by 4:00 p.m. (New York City time) on the Closing Date and the Closing Date shall be the Warrant Share
Delivery Date (as defined in the Pre-Funded Warrants) for purposes hereunder.
2.2 Deliveries.
(a) On or prior
to the Closing Date (except as indicated below), the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) this Agreement
duly executed by the Company;
(ii) a legal
opinion of Covington & Burling LLP, substantially in form and substance reasonably satisfactory to the Placement Agents;
(iii) subject
to the last sentence of Section 2.1, the Company shall have provided each Purchaser with the Company’s wire instructions, on
Company letterhead;
(iv) subject
to the last sentence of Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent
to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”)
a number of Shares equal to the number of Shares set forth on such Purchaser’s signature page hereto;
(v) a Pre-Funded
Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to such Purchaser’s
Subscription Amount divided by the Per Share Purchase Price (rounded down to the nearest whole Share) (such number the “Specified
Base Share Number”), minus the number of Shares required to be delivered pursuant to Section 2.2(a)(iv) , with
an exercise price equal to $0.001, subject to adjustment therein.
(vi) a Warrant
registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 100% of the Specified Base Share
Number, with an exercise price equal to the Per Share Purchase Price, subject to adjustment therein;
(vii) the duly
executed Lock-Up Agreements; and
(viii) the Prospectus
and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
(b) On or prior
to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company, the following:
(i) this Agreement
duly executed by such Purchaser; and
(ii) such Purchaser’s
Subscription Amount, which shall be made available for “Delivery Versus Payment” settlement with the Company or its designee.
2.3 Closing Conditions.
(a) The obligations
of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy
in all material respects (or, to the extent representations or warranties are qualified by materiality, in all respects) on the Closing
Date of the representations and warranties of the Purchasers contained herein (unless as of a specific date therein in which case they
shall be accurate in all material respects (or, to the extent representations or warranties are qualified by materiality, in all respects)
as of such date);
(ii) all obligations,
covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed; and
(iii) the delivery
by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The respective
obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the accuracy
in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in
all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a
specific date therein in which case they shall be accurate in all material respects or, to the extent representations or warranties are
qualified by materiality or Material Adverse Effect, in all respects) as of such date);
(ii) all obligations,
covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the delivery
by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there shall
have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) on the date
hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s principal
Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have
been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service,
or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude
in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser,
makes it impracticable or inadvisable to purchase the Securities at the Closing.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations and
Warranties of the Company. Except as explicitly described in the SEC Reports, which descriptions shall be deemed a part hereof and
shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the applicable SEC Report, the
Company hereby makes the following representations and warranties to each Purchaser:
(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth the SEC Reports. The Company owns, directly or indirectly, all
of the capital stock or other equity interests of each Subsidiary which it owns, free and clear of any Liens, and all of the issued and
outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and
similar rights to subscribe for or purchase securities. If the Company has no subsidiaries, all other references to the Subsidiaries or
any of them in the Transaction Documents shall be disregarded.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to
own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in
violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational
or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected
to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a
material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company
and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material
respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke,
limit or curtail such power and authority or qualification.
(c) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further
action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith or therewith, in
each case, other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which it is a party
has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof,
will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as
limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by
applicable law.
(d) No Conflicts.
The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the
issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby do not and will not
(i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation,
bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the
Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments, acceleration
or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing
a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property
or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result
in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority
to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property
or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could
not have or reasonably be expected to result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection
with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required pursuant
to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) application(s) to
each applicable Trading Market for the listing of the Shares, the Pre-Funded Warrant Shares and the Warrant Shares for trading thereon
in the time and manner required thereby, and (iv) the filing of a Form D with the Commission and such filings as are required
to be made under applicable state securities laws (collectively, the “Required Approvals”).
(f) Issuance
of the Securities; Registration. The Securities are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company.
The Pre-Funded Warrant Shares, when issued in accordance with the terms of the Pre-Funded Warrants, will be validly issued, fully paid
and nonassessable, free and clear of all Liens imposed by the Company. The Warrant Shares, when issued in accordance with the terms of
the Warrants, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Company has
prepared and filed the Registration Statement in conformity with the requirements of the Securities Act, which was declared effective
on [ ], 2023, including the Prospectus, and such amendments and supplements thereto as may have been required to the date of this Agreement.
The Registration Statement is effective under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration
Statement or suspending or preventing the use of the Prospectus has been issued by the Commission and no proceedings for that purpose
have been instituted or, to the knowledge of the Company, are threatened by the Commission. At the time the Registration Statement and
any amendments thereto became effective, at the date of this Agreement and at the Closing Date, the Registration Statement and any amendments
thereto conformed and will conform in all material respects to the requirements of the Securities Act and did not and will not contain
any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein not misleading; and the Prospectus and any amendments or supplements thereto, at the time the Prospectus or any amendment or supplement
thereto was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities
Act and did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading.
(g) Capitalization.
The capitalization of the Company as of March 31, 2023 is as set forth on the SEC Reports. The Company has not issued any capital
stock since its most recently filed periodic report under the Exchange Act, other than pursuant to (i) the exercise of employee stock
options under the Company’s stock option plans, (ii) the issuance of shares of Common Stock to directors pursuant to the Company’s
director compensation policy and (iii) the issuance of shares of Common Stock to employees pursuant to the Company’s employee
stock purchase plans, 401(k) matching contributions and pursuant to the vesting of restricted stock units or conversion and/or exercise
of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has
any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated
by the Transaction Documents. Except as a result of the purchase and sale of the Securities and as set forth in the SEC Reports, there
are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities,
rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire,
any shares of Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which
the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital
stock of any Subsidiary. The issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common
Stock or other securities to any Person (other than the Purchasers). There are no outstanding securities or instruments of the Company
or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon
an issuance of securities by the Company or any Subsidiary. There are no outstanding securities or instruments of the Company or any Subsidiary
that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the
Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The Company does not have any
stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding
shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar
rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others
is required for the issuance and sale of the Securities. There are no stockholders agreements, voting agreements or other similar agreements
with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among
any of the Company’s stockholders.
(h) SEC
Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be
filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus
and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a timely basis or has
received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As
of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange
Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act, or, if
it has been an issuer subject to Rule 144(i), it is not currently a “shell company” and at least one year has passed
since it filed “Form 10 Information” with the Commission. The financial statements of the Company included in the SEC
Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with
respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally
accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be
otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all
footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries
as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments.
(i) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the SEC Reports, (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result
in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade
payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required
to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the
Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash
or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock
and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company
equity compensation plans. The Company does not have pending before the Commission any request for confidential treatment of information.
Except for the issuance of the Securities contemplated by this Agreement, no event, liability, fact, circumstance, occurrence or development
has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective
businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under
applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least 1 Trading
Day prior to the date that this representation is made.
(j) Litigation.
There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened
against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental
or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”).
Neither the Company nor any Subsidiary, nor to the knowledge of the Company, any director or officer thereof, is or has been the subject
of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary
duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission
involving the Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other
order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the
Securities Act.
(k) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company,
which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees
is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company
nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships
with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now expected
to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement
or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued
employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any
of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and
regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the
failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(l) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement
or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default
or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental
authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including
without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety,
product quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result
in a Material Adverse Effect.
(m) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to pollution
or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata),
including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or
hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as
all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits,
plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have received
all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and
(iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and
(iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.
(n) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification
of any Material Permit.
(o) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good
and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each
case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which
is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
(p) Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications,
service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights
necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to
so have would reasonably be expected to result in a Material Adverse Effect (collectively, the “Intellectual Property Rights”).
None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property
Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from
the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements
included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate
or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To
the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person
of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(q) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited
to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business without a significant increase in cost.
(r) Transactions
With Affiliates and Employees. None of the officers or directors of the Company or any Subsidiary and, to the knowledge of the Company,
none of the employees of the Company or any Subsidiary is presently a party to any transaction with the Company or any Subsidiary (other
than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing
of services to or by, providing for rental of real or personal property to or from, providing for the borrowing of money from or lending
of money to or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any
entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder,
member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered,
(ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option
agreements under any stock option plan of the Company.
(s) Sarbanes-Oxley;
Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable requirements of the Sarbanes-Oxley
Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by
the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company and the Subsidiaries maintain
a system of internal accounting controls with the goal of providing reasonable assurance that: (i) transactions are executed in accordance
with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance
with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have
established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and
the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company
in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure
controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently filed periodic report
under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic
report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures
based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over
financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or
is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
(t) Certain
Fees. Except for fees payable by the Company to the Placement Agents, no brokerage or finder’s fees or commissions are or will
be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchasers shall have no obligation
with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that
may be due in connection with the transactions contemplated by the Transaction Documents.
(u) Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Securities, will not be
or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company
shall conduct its business in a manner so that it will not become an “investment company” subject to registration under the
Investment Company Act of 1940, as amended.
(v) Registration
Rights. No Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of any
securities of the Company or any Subsidiary that has not been satisfied or waived as of the date of this Agreement.
(w) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act,
and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. Except as set forth in the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received notice
from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance
with the listing or maintenance requirements of such Trading Market. The Common Stock is currently eligible for electronic transfer through
the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository
Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
(x) Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations
or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance of
the Securities and the Purchasers’ ownership of the Securities.
(y) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the Prospectus Supplement.
The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities
of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries,
their respective businesses and the transactions contemplated hereby is true and correct and does not contain any untrue statement of
a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations
or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.
(z) No Integrated
Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, neither the
Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales
of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be
integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions of any Trading Market on
which any of the securities of the Company are listed or designated.
(aa) [RESERVED].
(bb) Tax Status.
Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect,
the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and all foreign income
and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes
and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and
declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods
subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed
to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such
claim.
(cc) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other
person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions,
gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment
to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds,
(iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of FCPA.
(dd) Accountants.
To the knowledge and belief of the Company, the Company’s accounting firm (i) is a registered public accounting firm as required
by the Exchange Act and (ii) shall express its opinion with respect to the financial statements to be included in the Company’s
Annual Report for the fiscal year ending December 31, 2023 (or such other fiscal year end then applicable to the Company).
(ee) Acknowledgment
Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers is acting solely
in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby.
The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity)
with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their
respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely
incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s
decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions
contemplated hereby by the Company and its representatives.
(ff) Acknowledgment
Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except
for Sections 3.2(f) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers has
been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities
of the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified
term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales
or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively
impact the market price of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative”
transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the
Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party
in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may
engage in hedging activities at various times during the period that the Securities are outstanding, including, without limitation, during
the periods that the value of the Warrant Shares deliverable with respect to Securities are being determined, and (z) such hedging
activities (if any) could reduce the value of the existing stockholders’ equity interests in the Company at and after the time that
the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach
of any of the Transaction Documents.
(gg) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any
action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the
sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any
of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Placement Agents in connection with the
placement of the Securities.
(ii) Stock
Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i) in accordance
with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market value of
the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under
the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company
policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the
release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.
(jj) Cybersecurity.
Except as would not reasonably be expected to result in a Material Adverse Event, (i)(x) there has been no security breach or other
compromise of or relating to any of the Company’s or any Subsidiary’s information technology and computer systems, networks,
hardware, software, data (including the data of its respective customers, employees, suppliers, vendors and any third party data maintained
by or on behalf of it), equipment or technology (collectively, “IT Systems and Data”) and (y) other than as disclosed
in the SEC Reports, the Company and the Subsidiaries have not been notified of, and has no knowledge of any event or condition that would
reasonably be expected to result in, any security breach or other compromise to its IT Systems and Data; (ii) the Company and the
Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of
any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy
and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation
or modification, except as would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Company and the
Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material confidential information
and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the Subsidiaries
have implemented backup and disaster recovery technology consistent with industry standards and practices.
(kk) Office of
Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer, agent,
employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”).
(ll) U.S. Real
Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning of
Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s request.
(mm) Bank Holding
Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956, as
amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent
(5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or more of the total equity of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or
Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to
regulation by the Federal Reserve.
(nn) Money Laundering.
The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance in all material respects with
applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering
Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary,
threatened.
3.2 Representations and
Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the date
hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate
as of such date):
(a) Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company
or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such
Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership,
limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a
party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as limited
by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by
applicable law.
(b) Understandings
or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement
or understandings with any other persons to distribute or regarding the distribution of such Securities (this representation and warranty
not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement, Prospectus and Prospectus Supplement
or otherwise in compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in
the ordinary course of its business.
(c) Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which
it exercises any Warrants, it will be an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7),
(a)(8), (a)(9), (a)(12) or (a)(13) under the Securities Act.
(d) Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of such investment.
(e) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all
exhibits and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has
deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering
of the Securities and the merits and risks of investing in the Securities all such questions, if any, have been answered to its
satisfaction; (ii) access to information about the Company and its financial condition, results of operations, business,
properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain
such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to
make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither of the
Placement Agents nor any Affiliate of the Placement Agents has provided such Purchaser with any information or advice with respect
to the Securities nor is such information or advice necessary or desired. Neither of the Placement Agents nor any Affiliate has made
or makes any representation as to the Company or the quality of the Securities and the Placement Agents and any Affiliate may have
acquired non-public information with respect to the Company which such Purchaser agrees need not be provided to it. In connection
with the issuance of the Securities to such Purchaser, neither of the Placement Agents nor any of their respective Affiliates has
acted as a financial advisor or fiduciary to such Purchaser.
(f) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has
any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or
sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first received
a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material pricing terms
of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the
case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions
of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by
the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons
party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors, partners,
legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made
to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for
the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect
to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
(g) General
Solicitation. Such Purchaser is not purchasing the Securities as a result of any advertisement, article, notice or other communication
regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any
seminar or, to the knowledge of such Purchaser, any other general solicitation or general advertisement.
The Company acknowledges and agrees that the representations
contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on the Company’s representations
and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other
document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions contemplated
hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty,
or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Legends.
(a) The Shares,
Pre-Funded Warrants and Warrants shall be issued free of legends.
(b) Each Purchaser,
severally and not jointly with the other Purchasers, agrees with the Company that such Purchaser will sell any Shares, Pre-Funded Warrants,
Pre-Funded Warrant Shares, Warrants and Warrant Shares pursuant to either the registration requirements of the Securities Act, including
any applicable prospectus delivery requirements, or an exemption therefrom, and that if Shares, Pre-Funded Warrants, Pre-Funded Warrant
Shares, Warrants and Warrant Shares are sold pursuant to a Registration Statement, they will be sold in compliance with the plan of distribution
set forth therein, and acknowledges that the removal of the restrictive legend from certificates representing Shares and any Warrant Shares
as set forth in this Section 4.1 is predicated upon the Company’s reliance upon this understanding.
4.2 Furnishing of Information.
Until the earlier of the time that no Purchaser owns Securities, the Company covenants to timely file (or obtain extensions in respect
thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to
the Exchange Act even if the Company is not then subject to the reporting requirements of the Exchange Act.
4.3 Integration. The
Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2
of the Securities Act) that would be integrated with the offer or sale of the Securities in a manner that would be integrated with the
offer or sale of the Securities for purposes of the rules and regulations of any Trading Market such that it would require shareholder
approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent
transaction.
4.4 Securities Laws Disclosure;
Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms of the transactions
contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto, with
the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Company represents
to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the
Company or any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates or agents, including, without
limitation, the Placement Agents, in connection with the transactions contemplated by the Transaction Documents. In addition, effective
upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under
any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, employees,
Affiliates or agents, including, without limitation, the Placement Agents, on the one hand, and any of the Purchasers or any of their Affiliates
on the other hand, shall terminate and be of no further force or effect. The Company understands and confirms that each Purchaser shall
be relying on the foregoing covenant in effecting transactions in securities of the Company. The Company and each Purchaser shall consult
with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor
any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company,
with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release
of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case
the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding
the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with
the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required
by federal securities law in connection with the filing of final Transaction Documents with the Commission and (b) to the extent
such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice
of such disclosure permitted under this clause (b) and reasonably cooperate with such Purchaser regarding such disclosure.
4.5 Shareholder Rights
Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser is
an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser
could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents
or under any other agreement between the Company and the Purchasers.
4.6 Non-Public Information.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, which shall be
disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor any other Person acting on its behalf will
provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes,
material non-public information, unless prior thereto such Purchaser shall have consented in writing to the receipt of such information
and agreed in writing with the Company to keep such information confidential. The Company understands and confirms that each Purchaser
shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company, any
of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates delivers any material, non-public
information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not
have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates
or agents, including, without limitation, the Placement Agents, or a duty to the Company, any of its Subsidiaries or any of their respective
officers, directors, employees, Affiliates or agents, including, without limitation, the Placement Agents, not to trade on the basis of,
such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that any notice
provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any
Subsidiaries, the Company shall simultaneously with the delivery of such notice file such notice with the Commission pursuant to a Current
Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting
transactions in securities of the Company.
4.7 Use of Proceeds.
Except as set forth on Schedule 4.7 attached hereto, the Company shall use the net proceeds from the sale of the Securities hereunder
for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt
(other than payment of trade payables and accrued liabilities in the ordinary course of the Company’s business and prior practices),
(b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation
or (d) in violation of FCPA or OFAC regulations.
4.8 Indemnification of
Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser and its directors,
officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person
holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents,
members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any
and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in
settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur
as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company
in this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity
(including a Purchaser Party’s status as an investor), or any of them or their respective Affiliates, by the Company or any stockholder
of the Company who is not an Affiliate of such Purchaser Party, arising out of or relating to any of the transactions contemplated by
the Transaction Documents. For the avoidance of doubt, the indemnification provided herein is intended to, and shall also cover, direct
claims brought by the Company against the Purchaser Parties; provided, however, that such indemnification shall not cover any loss, claim,
damage or liability to the extent it is finally judicially determined to be attributable to any Purchaser Party’s breach of any
of the representations, warranties, covenants or agreements made by such Purchaser Party in any Transaction Document or any conduct by
a Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct. If any action shall
be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall
promptly notify the Company in writing, and, except with respect to direct claims brought by the Company, the Company shall have the right
to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall
have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to
employ counsel or (iii) in such action there is, in the reasonable opinion of counsel to the applicable Purchaser Party (which may
be internal counsel), a material conflict on any material issue between the position of the Company and the position of such Purchaser
Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel.
The Company will not be liable to any Purchaser Party under this Agreement for any settlement by a Purchaser Party effected without the
Company’s prior written consent, which shall not be unreasonably withheld or delayed. In addition, if any Purchaser Party takes
actions to collect amounts due under any Transaction Documents or to enforce the provisions of any Transaction Documents, then the Company
shall pay the costs incurred by such Purchaser Party for such collection, enforcement or action, including, but not limited to, attorneys’
fees and disbursements. The indemnification and other payment obligations required by this Section 4.8 shall be made by periodic
payments of the amount thereof during the course of the investigation, defense, collection, enforcement or action, as and when bills are
reasonably incurred and received; provided, that if any Purchaser Party is finally judicially determined not to be entitled to indemnification
or payment under this Section 4.8, such Purchaser Party shall promptly reimburse the Company for any payments that are advanced under
this sentence. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser
Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
4.9 Reservation of Common
Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all times,
free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue the Shares pursuant
to this Agreement and Pre-Funded Warrant Shares pursuant to any exercise of the Pre-Funded Warrants. The Company shall reserve and keep
available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company
to issue the Warrant Shares pursuant to any exercise of the Warrants.
4.10 Listing of Common
Stock. For as long as any Warrants are outstanding and exercisable, the Company hereby agrees to use reasonable best efforts to maintain
the listing or quotation of the Common Stock on the Trading Market on which it is currently listed, and concurrently with the Closing,
the Company shall apply to list or quote all of the Shares, the Pre-Funded Warrant Shares and the Warrant Shares on such Trading Market
and promptly secure the listing of all of the Shares, the Pre-Funded Warrant Shares and the Warrant Shares on such Trading Market. The
Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in such
application all of the Shares, the Pre-Funded Warrant Shares and the Warrant Shares, and will take such other action as is necessary to
cause all of the Shares, the Pre-Funded Warrant Shares and the Warrant Shares to be listed or quoted on such other Trading Market as promptly
as possible. The Company will then take all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading
Market and will comply in all material respects with the Company’s reporting, filing and other obligations under the bylaws or rules of
the Trading Market. For so long as the Company maintains a listing or quotation of the Common Stock on a Trading Market, the Company agrees
to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing
corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing
corporation in connection with such electronic transfer.
4.11 [RESERVED]
4.12 Subsequent Equity
Sales.
(a) From the
date hereof until 45 days after the date hereof, neither the Company nor any Subsidiary shall issue, enter into any agreement to issue
or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents.
(b) From the
date hereof until the six-month anniversary of the Closing Date, the Company shall be prohibited from effecting or entering into any equity
line of credit. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy
shall be in addition to any right to collect damages.
(c) Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance.
4.13 Equal Treatment of
Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to any Person to amend
or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is also offered to
all of the parties to the Transaction Documents. For clarification purposes, this provision constitutes a separate right granted to each
Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class
and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting
of Securities or otherwise.
4.14 Certain Transactions
and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate
acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales of any of the
Company’s securities during the period commencing with the execution of this Agreement and ending at such time that the transactions
contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4. Each
Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this
Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4, such Purchaser
will maintain the confidentiality of the existence and terms of this transaction (other than as disclosed to its legal and other representatives).
Notwithstanding the foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges
and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions
in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant
to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting
any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions
contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4 and
(iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company, any
of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates or agent, including, without limitation, the
Placement Agents, after the issuance of the initial press release as described in Section 4.4. Notwithstanding the foregoing, in the
case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions
of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio
manager that made the investment decision to purchase the Securities covered by this Agreement.
4.15 Exercise Procedures.
The form of Notice of Exercise included in the Pre-Funded Warrants and Warrants set forth the totality of the procedures required of the
Purchasers in order to exercise such Pre-Funded Warrants or Warrants, as applicable. No additional legal opinion, other information or
instructions shall be required of the Purchasers to exercise such Pre-Funded Warrants or Warrants. Without limiting the preceding sentences,
no ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of
any Notice of Exercise form be required in order to exercise such Pre-Funded Warrants or Warrants. The Company shall honor exercises of
such Pre-Funded Warrants or Warrants and shall deliver the Pre-Funded Warrant Shares or Warrant Shares, as applicable, in accordance with
the terms, conditions and time periods set forth in the Transaction Documents.
4.16 Lock-Up Agreements.
The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements except to extend the term of the
lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms. If any party to a Lock-Up Agreement
breaches any provision of a Lock-Up Agreement, the Company shall promptly use its best efforts to seek specific performance of the terms
of such Lock-Up Agreement.
ARTICLE V.
MISCELLANEOUS
5.1 Termination. This
Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever
on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated
on or before the fifth (5th) Trading Day following the date hereof; provided, however,
that no such termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2 Fees and Expenses.
Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its advisers,
counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation,
execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without limitation, any
fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered by a Purchaser),
stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers.
5.3 Entire Agreement.
The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus Supplement, contain the
entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.4 Notices. Any and
all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed
given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via email attachment
at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a
Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered via email attachment
at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (c) the second (2nd) Trading Day following the
date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom
such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached
hereto.
5.5 Amendments; Waivers.
No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of
an amendment, by the Company and Purchasers which purchased at least 50.1% in interest of the Shares based on the initial Subscription
Amounts hereunder (or, prior to the Closing, the Company and each Purchaser) or, in the case of a waiver, by the party against whom enforcement
of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately and adversely impacts
a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or group of Purchasers) shall also be
required. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall
any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any proposed amendment
or waiver that disproportionately, materially and adversely affects the rights and obligations of any Purchaser relative to the comparable
rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected Purchaser. Any amendment
effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company.
5.6 Headings. The headings
herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
5.7 Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may
not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser (other than by merger).
Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or transfers any Securities,
provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction
Documents that apply to the “Purchasers.”
5.8 No Third-Party Beneficiaries.
The Placement Agents shall be third party beneficiaries of the representations and warranties of the Company in Section 3.1 and the
representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for the benefit of the parties hereto
and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any
other Person, except as otherwise set forth in Section 4.8 and this Section 5.8.
5.9 Governing Law.
All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting
in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such
court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action
or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company under Section 4.8,
the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding.
5.10 Survival. The
representations and warranties contained herein shall survive the Closing and the delivery of the Securities for a period of 365 days.
5.11 Execution. This
Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf”
format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such “.pdf” signature page were an original thereof.
5.12 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13 Rescission and Withdrawal
Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of the other Transaction
Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and the Company does not
timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw, in its sole discretion
from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to
its future actions and rights; provided, however, that in the case of a rescission of an exercise of a Pre-Funded Warrant
or Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded exercise notice
concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company for such shares and the restoration
of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Pre-Funded Warrant or Warrant (including, issuance
of a replacement warrant certificate evidencing such restored right).
5.14 Replacement of Securities.
If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to
be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor,
a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction.
The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including
customary indemnity) associated with the issuance of such replacement Securities.
5.15 Remedies. In addition
to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers and
the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not
be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby
agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would
be adequate.
5.16 Payment Set Aside.
To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser enforces
or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded,
repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any
bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation
or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not
been made or such enforcement or setoff had not occurred.
5.17 Independent Nature
of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and not
joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance
of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. For
reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to communicate with the Company through
Pryor Cashman LLP. Pryor Cashman LLP does not represent any of the Purchasers and only represents the Placement Agents. The Company has
elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it
was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this
Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers
collectively and not between and among the Purchasers.
5.18 Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein
shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
5.19 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference
to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
5.20 WAIVER OF JURY
TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY
AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY
WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
IN WITNESS WHEREOF, the parties
hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first
indicated above.
YIELD10 BIOSCIENCE, INC.
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By: |
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Name: |
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Title: |
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Address for Notice:
E-Mail:
With a copy to (which shall not constitute notice):
[ ]
E-mail:
Attention:
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
[PURCHASER SIGNATURE PAGES TO YTEN SECURITIES PURCHASE
AGREEMENT]
IN WITNESS WHEREOF, the undersigned
have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
Name of Purchaser: ________________________________________________________
Signature of Authorized Signatory of Purchaser:
_________________________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ________________________________________________
Email Address of Authorized Signatory:_________________________________________
Principal Place of Business:
Address for Notice to Purchaser:
Address for Delivery of Warrants to Purchaser (if not same as address
for notice):
Subscription Amount: $_________________
Shares: _________________
Pre-Funded Warrant Shares: ___________
Warrant Shares: __________________
EIN Number: _______________________
EXHIBIT A
Form of Warrant
EXHIBIT B
Form of Pre-Funded Warrant
EXHIBIT C
Form of Lock-Up Agreement
Lock-Up Agreement
August ___, 2023
Maxim Group LLP
300 Park Avenue
New York, NY 10022
Lake Street Capital Markets, LLC
920 2nd Ave. S, Suite 700
Minneapolis, MN 55402
Re: Proposed Public
Offering by Yield10 Bioscience, Inc.
Ladies and Gentlemen:
The undersigned, a stockholder,
officer and/or director of Yield10 Bioscience, Inc., a Delaware corporation (the “Company”), understands that the Company
proposes to enter into a Securities Purchase Agreement (the “Purchase Agreement”) with certain investors providing
for the offering (the “Public Offering”) of shares of the Company’s common stock, par value $0.01 per share (the
“Common Stock”) and certain other securities convertible into or exchangeable or exercisable for Common Stock, for
which Maxim Group LLC and Lake Street Capital Markets, LLC are acting as placement agents (the “Placement Agents”).
In recognition of the benefit that such an offering will confer upon the undersigned as a stockholder, an officer and/or a director of
the Company and as consideration of the Placement Agents’ agreement to enter into the Purchase Agreement and proceed with the Public
Offering, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned
agrees with the Placement Agents that, during the period beginning on the date hereof and ending on the date that is 60 days from the
date of the Purchase Agreement (the “Lock-Up Period”), the undersigned will not, without the prior written consent
of each of the Placement Agents, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for the sale of, or otherwise dispose of or transfer any shares
of Common Stock or any securities convertible into or exchangeable or exercisable for Common Stock, whether now owned or hereafter acquired
by the undersigned or with respect to which the undersigned has or hereafter acquires the power of disposition (collectively, the “Lock-Up
Securities”), or exercise any right with respect to the registration of any of the Lock-Up Securities, or file or cause to be
filed any registration statement in connection therewith, under the Securities Act of 1933, as amended, or (ii) enter into any swap or
any other agreement or any transaction that transfers, in whole or in part, directly or indirectly, the economic consequence of ownership
of the Lock-Up Securities, whether any such swap or transaction is to be settled by delivery of Common Stock or other securities, in cash
or otherwise.
Notwithstanding the foregoing,
and subject to the conditions below, the undersigned may transfer Lock-Up Securities without the prior written consent of the Placement
Agents, provided, in each case, that (1) for transfers made pursuant to clause (i)(a) below, the Placement Agents receive a signed
lock-up agreement in substantially the form of this lock-up agreement for the balance of the Lock-Up Period from each donee, trustee,
distributee, or transferee, as the case may be, and (2) other than for purposes of clauses (ii), (iv), (v) and (vii) below, any such transfer
shall not involve a disposition for value:
| (i) | any transfers made by the undersigned (a) as a bona fide gift to any member of the immediate family of
the undersigned or to a trust the beneficiaries of which are exclusively the undersigned or members of the undersigned’s immediate
family, (b) by will or intestate succession upon the death of the undersigned or (c) as a bona fide gift to a charity or educational institution
(it being understood that (x) “immediate family” shall mean a spouse, child, grandchild or other lineal descendant (including
by adoption), father, mother, brother or sister of the undersigned and (y) any references to “immediate family” in the agreement
executed by such transferee shall expressly refer only to the immediate family of the undersigned and not to the immediate family of the
transferee); |
| (ii) | transactions relating to Common Stock or other securities convertible into or exercisable or exchangeable
for Common Stock acquired in open market transactions after completion of the Public Offering; |
| (iii) | the entry, by the undersigned, at any time on or after the date of the Purchase Agreement, of any trading
plan providing for the sale of Common Stock by the undersigned, which trading plan meets the requirements of Rule 10b5-1(c) under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), provided, however, that such plan does not provide
for, or permit, the sale of any Common Stock during the Lock-Up Period and no public announcement or filing is voluntarily made or required
regarding such plan during the Lock-Up Period; |
| (iv) | any transfers made by the undersigned to the Company to satisfy tax withholding obligations pursuant to
the Company’s equity incentive plans or arrangements disclosed in the Prospectus (as defined in the Purchase Agreement) or to pay
the exercise price of any options issued under any such plan or arrangement which expires during the Lock-Up Period; provided that any
filing under Section 16 of the Exchange Act made in connection with such transfer shall clearly indicate in the footnotes thereto that
the filing relates to the circumstances described in this clause; |
| (v) | any transfers in connection with a bona fide third party tender offer, merger, consolidation or other
similar transaction made to all holders of Common Stock involving a change of control of the Company, provided that in the event that
the tender offer, merger, consolidation or other such transaction is not completed, the undersigned’s Common Stock shall remain
subject to the restrictions contained herein; |
| (vi) | any distribution or other transfer by a partnership to its partners or former partners or by a limited
liability company to its members or retired members or by a corporation to its stockholders or former stockholders or to any wholly-owned
subsidiary of such corporation; and |
| (vii) | any transfers by operation of law, such as pursuant to a qualified domestic order or in connection with
a divorce settlement. |
Furthermore, no provision
in this letter shall be deemed to restrict or prohibit (1) the transfer of the undersigned’s Lock-Up Securities to the Company in
connection with the termination of the undersigned’s services to the Company, provided that any filing under Section 16 of the Exchange
Act made in connection with such transfer shall clearly indicate in the footnotes thereto that the filing relates to the circumstances
described in this clause (1); (2) the exercise or exchange by the undersigned of any option or warrant to acquire any shares of Common
Stock or options to purchase shares of Common Stock, in each case for cash or on a “cashless” or “net exercise”
basis, pursuant to any stock option, stock bonus or other stock plan or arrangement; provided, however, that the underlying shares of
Common Stock shall continue to be subject to the restrictions on transfer set forth in this letter and that any filing under Section 16
of the Exchange Act made in connection with such exercise or exchange shall clearly indicate in the footnotes thereto that (a) the filing
relates to the circumstances described in this clause (2) and (b) no shares were sold by the reporting person; (3) transactions pursuant
to a Rule 10b5-1 trading plan in effect as of the date hereof; (4) the transfer of equity received in lieu of cash compensation pursuant
to a prior election made under the Company’s director compensation policy; and (5) the transfer of equity pursuant to the Company’s
401(k) matching contribution policy.
The undersigned also agrees
and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of
the Lock-Up Securities except in compliance with the foregoing restrictions. This lock-up agreement shall automatically terminate, and
the undersigned shall be released from the undersigned’s obligations hereunder, upon the earliest to occur, if any, of (i) prior
to the execution of the Purchase Agreement, the Company advises the Placement Agents in writing that it has determined not to proceed
with the Public Offering; (ii) the Purchase Agreement is executed but is terminated prior to the closing of the Public Offering (other
than the provisions thereof which survive termination), or (iii) August 31, 2023, in the event that the Purchase Agreement has not been
executed by such date.
This agreement shall be governed
by, and construed in accordance with, the laws of the State of New York.
[SIGNATURE PAGE FOLLOWS]
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Very
truly yours, |
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Name
of Security Holder (Print exact name) |
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By: |
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Signature |
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If
not signing in an individual capacity: |
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Name
of Authorized Signatory (Print) |
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Title
of Authorized Signatory (Print) |
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(indicate
capacity of person signing if signing as custodian, trustee, or on behalf of an entity) |
Exhibit 23.1
Consent
of Independent Registered Public Accounting Firm
We consent to the incorporation
by reference in this Pre-effective Amendment No. 1 to the Registration Statement (No. 333-273240) on Form S-1 and related Prospectus
of Yield10 Bioscience, Inc. of our report dated March 14, 2023, relating to the consolidated financial statements of Yield10 Bioscience,
Inc., appearing in the Annual Report on Form 10-K of Yield10 Bioscience, Inc. for the year ended December 31, 2022.
We also consent to the reference
to our firm under the heading “Experts” in such Prospectus.
/s/ RSM US LLP
Boston, Massachusetts
August 2, 2023
Exhibit 107
Calculation of Filing Fee Tables
Form
S-1
(Form
Type)
Yield10
Bioscience, Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and
Carry-Forward Securities
|
Security
Type |
Security
Class
Title |
Fee
Calculation
Rule |
Amount
Registered (1) |
Proposed
Maximum
Offering
Price Per Unit |
Maximum
Aggregate
Offering Price (2) |
Fee
Rate |
Amount
of
Registration
Fee |
Carry
Forward
Form Type |
Carry
Forward
File Number |
Carry
Forward
Initial Effective
Date |
Filing
Fee
Previously Paid
In Connection
with Unsold
Securities to be
Carried
Forward |
Newly
Registered Securities |
Fees
to be Paid |
Equity |
Units
(“Units”) consisting of (i) one share of common stock, par value $0.01 per share (“Common Stock”) or a pre-funded
warrant (“Pre-funded Warrant”) to purchase one share of Common Stock and (ii) a common warrant (“Common Warrant”)
to purchase one share of Common Stock |
457(o) |
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$10,000,000 |
0.00011020 |
$1,102 |
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Other |
Common
Warrants included in the Units (3) |
N/A |
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Other |
Pre-funded
Warrants included in the Units (3) |
N/A |
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Equity |
Common
Stock underlying the Common Warrants to purchase Common Stock |
N/A |
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Equity |
Common
Stock underlying the Pre-funded Warrants to purchase Common Stock |
N/A |
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Fees
Previously Paid |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
|
N/A |
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|
Carry
Forward Securities |
Carry
Forward Securities |
N/A |
N/A |
N/A |
N/A |
|
N/A |
|
N/A |
N/A |
N/A |
N/A |
|
Total
Offering Amount |
|
$10,000,000 |
0.00011020 |
$1,102 |
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Total
Fees Previously Paid |
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N/A |
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Total
Fee Offsets |
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N/A |
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Net
Fee Due |
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$1,102 |
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(1) Pursuant to Rule 416(a)
promulgated under the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of common
stock of Yield10 Bioscience, Inc. (the “Registrant”) that become issuable with respect of the securities identified in the
above table by reason of any stock dividend, stock split, recapitalization or other transaction effected without the Registrant’s
receipt of consideration that results in an increase in the number of outstanding shares of Registrant’s common stock.
(2) Estimated solely for
the purpose of calculating the amount of the registration fee in pursuant to Rule 457(o) under the Securities Act of 1933, as amended
(the “Securities Act”).
(3) In accordance with Rule
457(g), the entire registration fee for the Common Warrants and the Pre-funded Warrants is allocated to the shares of Common Stock underlying
such Common Warrants and Pre-funded Warrants, and no separate fee is payable for the Common Warrants or the Pre-funded Warrants.
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